COP26: Moving Money, Banks and Lawsuits

In our final conversation with CEO of ClientEarth, James Thornton, the role environmental NGOs play in speeding up actions and moving money in the right direction is explored – with examples of how being unafraid to take on the big guns could reap the desired rewards.

David: Law can unquestionably play an important role in environmental activism. What, in your view, is the role of environmental NGOs today?

Banks and money

James: The role of environmental NGOs is very important. They are able to speed up society’s understanding of these problems and then speed up the action of politicians, corporations in dealing with them.

Even though people are now pretty well on track to understand that there are problems, the movement that we’re making towards solving them is just too slow. Some will take action in the form of demonstrations. Some, like me, will take action in the form of bringing lawsuits.

David: There’s such pragmatism to the approach with ClientEarth, like constantly trying to work out what way you can get to this ideal end point. But, it seems that you have to keep the horizons so broad because a one-channel approach isn’t going to necessarily get you there.

James: If you’re going to save the environment, you have to move the money in the right direction. So you have to move trillions of dollars away from investment in fossil fuels, coal, oil, gas and all of that. You have to move all that money to renewable energy, for example. So, how do you do that?

Environmental law on its own isn’t enough because it regulates bad behaviour, but it doesn’t go to the heart of the money – and the decisions about where money go and the responsibilities of how to spend money in the right way.

So you need to think, how do you look at securities law as if it were environmental law? How do you look at banking as if it were environmental law? And we’ve been doing very cool things. We just wrote a letter to 17 of the world’s biggest banks, because they want to give a lot of money to Shell to develop new oil and gas field.

We wrote to the banks saying, look, you are going to be encouraging the development of the oil and gas field in such a way that it will make it harder to meet the Paris Agreement. You will, we think, be violating your fiduciary duty to your shareholders. You may be liable to lawsuits from your shareholders for this behaviour. So withdraw from this deal now.

Now that was very public and I made it very simple, but it’s a very long legal letter. If they’re smart, they’ll decide ‘well, we’re not going to fund this’. If they don’t, there is the potential then for litigation against them to stop the funding. Now, six years ago, I wouldn’t have thought that we could do that.

But now, we look at all of these other specialities, areas of law that can be used just as much for the environment as environmental law itself. I love the synergies that you get when you bring all these areas of law. It’s very dynamic.

David: That type of process of writing a letter to send to the bank that sounds like quite fun to me.

Well, it is – you’re right. Law can seem very dry and on its own – it is dry. But what I can do with it is very exciting. Just so powerful. I’ll give you another example, since we’re talking about banks.

So, you know we were saying, how do you move the money in the right direction? Well, the EU has something called the Green Deal. Everything we do as the EU must look at the environment and give an environmental benefit. It’s a beautiful concept – and then the question, as always, is what does it mean in the real world? So a nice idea, but does it actually mean anything?

Then the EU decided it was going to do what’s called quantitative easing, where they were going to put a lot of money in to help the economy post-COVID – and a lot of money, €750 billion.

A good idea from an economic point of view; to help the economy after COVID-19, so we said, is it actually going to meet the terms of the Green Deal? With all that money, will it help Europe move towards being greener?

We looked at analysis from the London School of Economics and the European Central Bank, which was simply going to buy bonds, which is how you do this, according to a standard formula.

The London School of Economics Grantham Institute looked at that and said, well actually that standard formula would mean that over 60% of this money went to fossil fuel in one way or another – to oil companies, or to other possibly related entities – so it’s not green at all.

And so €750 billion, you put towards the green economy. But within that €750 billion, more than 60% is put towards the fossil fuel economy and you’re moving backwards. So we said, what can we do about that? We said, we think this is illegal under the Green Deal and under the Treaty of Europe. We’ve looked at how the bonds are actually bought and then the bonds would be bought by six central banks.

James Thonton and David McKeown

So we sued the central Bank of Belgium and said this bond purchase that you’re about to do violates the Green Deal and violates the Treaty of Europe. You’re an entity of the government and you’re required to look at the environmental impact of this. You just can’t do it.

It also kind of met a lifetime goal of mine, of suing a central bank! So we’ll see where we go.  But if we go to the European court and win, then what will happen is cool.

One of the interesting things about using law the way we do is it’s like playing 60 chess games, looking ahead and playing this very good game. Because what we’re trying to do is ask, how do you influence that quantitative easing decision?

The woman who runs the European Central Bank, Christine Lagarde, wants to do the right thing. She actually wanted that bond purchase to foster the Green Deal, but the bank governors said,

“No, we have a very narrow mandate. We can’t look at the real-world impact of our decision, only the fiscal impacts, the financial impact.” Which is just madness.

We said sorry, no, took them to court. And if we win in the European court, then Christine Lagarde will get the space to do what she wanted to do, but didn’t have the power to do.

So again, if you go into the system and look at it holistically, how can you move that money to get a good green result? You put all these pieces together and then find a lever, which just happened to be banking law.

Let’s see if we win. But win or lose it’s a very good shot.

Find out more about our ClientEarth Conversation Series online where you can also book your place on the Environment and Energy Law Society roundtable to discuss the issues raised in the series with fellow staff and students.

COP26: Biodiversity, Big Cycles and Human Rights

In the third interview in our COP26 Conversation Series postgraduate research student David McKeown, talks to CEO of ClientEarth and honorary professor James Thornton about biodiversity – critters, compost and ‘wholism’ – exploring how human rights law can protect those best positioned to be the stewards of nature.

biodiversity and human rights

David: In the UK ClientEarth is very known for its work with climate action, but alongside this, your work is also concerned with protecting forests and defending habitats.

What do you perceive as the main threats for biodiversity?

One is climate change. If you’re going to protect biodiversity, you have to stop climate change. There are a lot of good reasons to stop climate change, and that’s one of them, if you want to protect life and the diversity of life. Another is the human use of land. Agriculture is one of the largest impacts, in Europe, for example, it’s the number one thing that is having an impact on biodiversity and creating biodiversity loss.

The conversion of land and then the use of pesticides and herbicides – that’s an enormous global problem. Agriculture, and then deforestation. Deforestation sometimes involves agriculture – in Brazil, for example, you have large areas of forest and the drier forests the cerada, but also the wetter forests, that have been and are being cut down in order to grow soybeans.

We raise enormous numbers of animals in terrible conditions, and we cut down the rainforest to grow soy beans to feed them. And so the whole agricultural industry is one of the main contributors. And in the end, also climate change itself.

“If you want to protect diversity, one of the things you need to do is to address the agriculture system that we have and try and make it a much more sustainable system.”

It’s something that you can immediately start working on. And of course, we work on.

David: That description of these different factors really demonstrates the relationality of climate issues and environmental issues in general. I wonder for you, has it always been a holistic approach or was there one cause that brought you into climate activism?

Did you always have this sense that there was a holistic nature to this problem?

The nature of nature is holistic, completely holistic, and like almost every environmentalist I’ve ever met. What happened to me is I fell in love with nature as a kid. You know, as a kid, I spent as much time as I could out in nature and collecting spiders, looking at flowers, watching birds or anything I could do that would get me intimately involved with nature.

And then at university and law school it was beginning to become clear that the human impacts were growing to the point that they were dangerous. I had originally thought I was going to be a scientist because I loved nature.

“Becoming a lawyer became a way to learn tools that could be used to save nature rather than studying it and see it go. I would get these tools and try and protect it.”

So then as soon as you go into it, you see the connections between this part and that part between all of it.

David: It’s an encouraging time in many ways because I feel like people are talking, certainly post COVID-19, a lot more about the environment in a way that maybe prior to COVID-19, I sense wasn’t as popular. Particularly  with lockdowns, people were getting back into nature and rediscovering it.

James: Then the question is, how do you protect? Nature based, area based protection has to look at not only the science of what is important to protect in the area, but also the human communities who live there, and particularly in areas that are relatively wild. It would be the forest dependent communities and other people that are farmers and so on, who are the ones who can become the custodians of this – and then understanding their rights and protecting their rights becomes enormously important.

“One of the things that should come out of protecting nature is also protecting indigenous people. And this would be an immense boon for human rights as well as nature.”

David: Something that’s not so explicitly mentioned within the Convention on Biological Diversity is human rights, but within the Special Rapporteur of Human Rights within these recent reports,  there has been mention of this connection between human rights and the Convention on Biological Diversity. You’re seeing a lot of signpost towards rights, rights based discourse. That would be an incredible step if we could see a greater connection between human rights mechanisms and protections and also the Convention on Biological Diversity.

And I suppose that links back as well to what we were discussing earlier with the idea of holism and interconnection between nature and humans. Like this idea when you were mentioning earlier the critters, I was thinking of Donna Haraway’s “We’re all compost.”

James Thornton and David McKeown

“This really captures the idea quite nicely because everything from the critters that seem so insignificant to some people, right the way up to much larger aspects of nature are really all quite interrelated.”

And the rights that we might think about, you know, human rights only freedom of expression and this sort of thing are actually inherently interrelated to what we might see as something that we would use to conserve biodiversity.

James: Well, you’re absolutely right. One of the areas that we’ve been working on for almost 10 years is, if enforced, conservation in four countries in Africa. We’ve been working to protect and enhance the rights of the forest-dependent communities.

The current understanding by scientists, by the best conservationists, is that the way to protect nature is to protect the people who protect nature. And it’s obvious when you think about it, but that’s not the way conservation used to go. It used to be to protect nature from people.

“By protecting the people in situ who are the best place to steward the land and the various ecosystems, you have the best chance of protecting the ecosystems.”

So it’s really inseparable to the human rights from protecting nature. And what you need to do then is to become an expert.

“It is helpful being lawyers because you need to become an expert in what those very complicated rights are; some of them very ancient customs that were never written down for indigenous communities.”

And that’s overlaid with colonial law with more modern law. So there’s a new kind of archeology of rights in an area. And what will need to happen now for this area-based conservation that comes out of the Convention on Biological Diversity, is a lot of focus on clarifying those rights and making it clear that these people actually have rights there. And ideally, one of the things we’d like to see is a centralised system, annotating those rights so that they’re easier to protect. It’s a difficult thing because you’ve got such plural systems, even within a small geographical area.

David: And then also you’ve got these decolonial paradigms at play as well. It is very hard to unpack, but the complexity of it, once it’s embraced, can actually produce ways and pathways of dealing with this. For me, one of the most important ones is participatory rights. It’s so often overlooked, but they can be so fundamental in, especially types of governance, to try and set a framework in place where people can participate and see what can potentially flourish out of that.

James: And these big cycles that we’re talking about now really are the way to think.

“What’s encouraging is that I think a lot of people are beginning to see the big cycles and interconnection of all of these things which gives many people a moment of despair. But what it also means is if you go through that despair and realise that the actions you can take are improving actions, you also then feel self-empowered. So if everything is connected and I’m doing something that helps part of it, I’m doing something that also helps the whole thing.”


Find out more about our ClientEarth Conversation Series online where you can also book your place on the Environment and Energy Law Society roundtable to discuss the issues raised in the series with fellow staff and students.

COP26: A Crisis, Coal and Corporate Law

Contuining our COP26, ClientEarth Conversation Series, we heard again from postgraduate research student David McKeown talking to James Thornton, CEO of ClientEarth and an Honorary Professor of Law – about the climate crisis, the impact of coal and how corporate law can and has influenced decision making in this area.

China and coal

David: This year has been and is going to be very important in terms of global meetings between certain multilateral legal agreements regarding the environment.

Firstly, what do you hope for and expect from the COP26?

James: What is more and more apparent to everybody is that the planet is in a crisis – a climate crisis is well described in the news most days as we see the fires and the floods and the droughts – and there’s also, less often in the news but equally important a biodiversity crisis or a nature crisis. We’re in the sixth grade extinction and we’re losing species very rapidly so the world needs to pay a lot of attention to these things.

“It may be the most important meeting that will happen for the planet in our lifetimes.”

In that the Paris agreement, which was concluded five years ago now was a global agreement where 197 countries, came together and agree that there was a climate crisis and agreed that a series of steps that they would take to meet it. Now, five years later, what this meeting is about is to try and take far further steps.

So the Paris agreement is a set of guidelines. People went back to their own countries, came up with their own plans. Those plans aren’t yet nearly enough to meet the goals of the Paris agreement, which is keeping climate within 1 degree, 1.5 degrees centigrade of where it was in pre-industrial times.

“So that 1.5 degree rise is already dangerous for civilisation. Unless much more is done, than has been done, unless much more is committed and then done, than has been committed and has been done, we go way beyond 1.5 degrees. If we do go way beyond 1.5 degrees, then the consequences are extremely severe for our society. And at a certain point, maybe 4 degrees or so, civilisation itself will begin to fray and potentially rupture.”

We can do very well in terms of meeting the Paris agreement, but to get back to your question, that takes a lot more commitment, and then following through on the commitments. The time to commit is in this meeting in COP26 meeting in Glasgow.

So what do I want from it? I want countries to agree to further cuts. In order to meet the 1.5 degree target, basically you have to have every country saying we’re going to reduce our emissions by 50 percent by 2030 and then all the way down to zero emissions by 2050.

That’s far from where the commitments are right now. And we need those we need those greater commitments.

David: I suppose in the context of something like COP26, this is where legal activism can really flourish in a sense, because the discussions that we’re having, sort of agreements that we’re trying to broker are ones that can be strengthened through a legal dynamic.

James Thornton and David McKeown

Going into Glasgow, is there any one thing in particular that you’re looking out for, or is it more across the spectrum?

Going into Glasgow what you really want to see is those countries really commit to reducing their emissions, much more than they have now. Commit as part of that to stopping the use of coal. They haven’t agreed to do that. And then the wealthy countries to agree to transfer quite a lot of money, well over 100 billion a year, to the developing world.

Now, will that happen? One is very hopeful. One can only be hopeful. There are some good signs. Let me say that there are some discouraging signs. The G7 countries got together in Cornwall this summer and one of the things they tried to do was to reach an agreement to stop the use of coal, even among themselves, those large economies and they couldn’t agree to do that. That was disappointing. It’s not final and nothing is ever final.

The hope is that there’s been a lot of energy put into it since, which there has, and we may see an agreement to have at least the top countries get over the use of coal.

A very important and positive thing happened last week. President Xi of China announced that there would be no more investment by China in building coal plants outside China. That was an enormous shift because one of the things that we, at ClientEarth have been most worried about and working on very hard is preventing the building of new coal plants and then shutting down existing coal plants through legal tools.

Inside China where we work, we were making the argument that coal is a bad investment as well. That’s an argument, a kind of corporate law investment argument that has worked in cases in courtrooms in Europe and in boardrooms in Japan.

We were making a similar argument to China saying there are all these climate reasons why you shouldn’t do it, but it’s also simply about investment. We actually wrote an economics memo with the Ministry of Environment on that point in or around January of this year.

It went all the way up to the top of the hierarchy. We received that a moratorium on building coal was placed outsdie China. Then in September, President Xi announced no new coal outside of China, so that’s hundreds potentially of coal plants that have been stopped – and going into the COP, that’s a very exciting signal.

One hopes that the developed countries will say, OK, China is building no coal outside so, over time, we’re going to commit to getting off coal ourselves. Unless the world gets out of coal, it’s going to be very hard to meet the Paris Agreement targets.

David: That example with China is a very good case study, almost in pragmatics and how you might approach it from one perspective, but also seeing the type of argument that’s going to work best for the context. In a way, that’s a real testament to a type of legal activism where you have to be pragmatic to try and get the best result. In this instance, it’s the best result for the planet. To see China make that sort of commitment is also really encouraging. I’m sure, for you that must have been a real victory.

James: Yes, it was very exciting. Just yesterday I was giving a speech in a meeting in Beijing, with Chinese officials and Westerners, and everyone was celebrating this victory. There is a Chinese government organisation called Greening the Belt and Road Coalition, and I’m part of that. There was a meeting where we were celebrating this big change in policy as a hugely dramatic step in the right direction.

We’ve needed some really big steps in the right direction, and this is one – and will encourage others, I hope it should do.

Find out more about our ClientEarth Conversation Series online where you can also book your place on the Environment and Energy Law Society roundtable to discuss the issues raised in the series with fellow staff and students.


A ClientEarth Conversation: Hope, students and climate activism

The planet is in the grip of a climate crisis, and COP26 maybe the most important meeting that will happen for the planet in our lifetime. In the first of our ClientEarth Conversation Series, postgraduate research student David McKeown talks to James Thornton, CEO of ClientEarth and an Honorary Professor of Law, about the positive role law graduates can play in creating the frameworks needed to address the diverse challenges of climate change.

climate change

David: Law can unquestionably play an important role in environmental activism. But what would your message be to students who are aspiring to engage with these sorts of environmental issues through law?

James: Keep going! What has been the case is that law has taken a deeper and deeper role in protecting the environment since the beginning, and only through creating systems of rules that are understandable, participatory, and that are agreeable to the regulated communities and to the affected parties, can you wind up protecting and protecting nature and the climate. So I think of law as a system of rules that is agreed at any one point – it’s like a photograph of what does a particular society believe is important, you know?

And that’s what the law shows, as we go forward and as we’re creating greater regulation to protect oceans, to protect the climate, all of these things are developing and developing quite quickly.

‘There is more law to make, so we need more good environmental lawyers. And then there’s more law to enforce, so we need more good environmental lawyers. People who really understand environmental law are going to take, I think, a more and more central place in society as it goes forward, because these things aren’t easy to do.”

Having a system of rules that regulates human interaction with the extreme complexity of nature in a way that becomes harmless, is what we’re looking for. That’s not an easy thing to conceive, to put in place or to enforce.

The reason we used the name ClientEarth is we like to think of the earth as the client and everybody who lives on it as the client.   And if you’re a lawyer, you have to talk to a client. So how do you talk to a client if you’re an environmental lawyer? It’s through science.

Science tells you what the earth needs, what these systems need – and then because that understanding is deepening and changing all the time, environmental law and regulations will always be constantly evolving. So it’s a living system, unlike many areas of law.

A competition lawyer friend of mine said, ‘what I do is I just fight for one big company against another big company to move money from one box to another box. Who cares? I didn’t do anything good for the world, really.’ And he said, ‘what you do is you’re trying to create a whole system of rules and enforce existing rules that allow society to move forward in its relationship with the earth’, so it’s always evolving.

It’ll never be a boring, formal, fixed system and that’s what I like about it. It’s one of the few areas of law that is itself a living system and it has to be. The lawyers who are doing it are the ones who will be making it.

One of the cool things about working in ClientEarth is that all of the lawyers working there are doing things that have never been done before. That’s not normal in any kind of profession, even if you’re a surgeon and certainly not among lawyers, so most of what you’re doing when you’re working in this space is at the cutting edge – completely new.

And when you’re doing it, if you’re successful, you will personally help save civilization, because that’s what we’re working on now.

With all the problems, with civilization potentially in danger – these rules and these understandings are what give the possibility for us to save the future for our descendants.

So is environmental law important? Wow – it’s really important.

The other thing that we’ve been doing, which is very cool, is bringing other areas of law into the service of the environment. So this is another thing to consider while you’re studying. About five years ago, we said if you’re going to save the environment, you have to move the money in the right direction. You have to move trillions of dollars away from investment in fossil fuels, coal, oil, gas, all that. You have to move it all to renewable energy, for example.

Well, how do you do that? When we say environmental law on its own it isn’t enough, because it regulates bad behaviour, but it doesn’t go to the heart of the money and the decisions about where money go, and the responsibilities of how to spend money in the right way.

So we said, OK, let’s become experts in company law, in securities law and banking law, in the law of fiduciary duty, pensions and insurance law. We brought in colleagues who are experts in all those things, and we said, OK, this is all the law that has to do with decisions about money.

How do we use the obligations that are already in those legal arenas to change behaviour so that it improves for the environment?

And that’s been a really interesting puzzle. How do you look at securities law as if it were environmental law? How do you look at banking law as if it were environmental law? We’ve been doing very cool things – it’s very dynamic.

When you think of working in an environment we look at the whole world and we say, how do we use all of that? How do we use all of those tools to improve human beings interaction with the planet and make it harmless and make it true?

James Thornton and David McKeown

David: Sometimes the law can seem quite a dry or stodgy subject, but actually it’s incredibly creative when it’s directed at meaningful problems like climate change and you ask yourself, what kind of methodology or approach are we going to try and go down here?

The interdisciplinarity between law and different perspectives on law – is really interesting and it’s great to hear what you’re doing that Client Earth. I know that in the Law School, there’s been collaborations between environmental lawyers and employment lawyers, and I think that is a pattern you see manifesting in different places.

It’s so encouraging because it seems to suggest that there’s a breaking down of this old-fashioned conception of what nature and the environment might be. A movement towards something that is more akin to our own experiences, and hopefully, that will produce some encouraging results.

To have someone in the Law School that is so heavily involved with climate activism is really important, because I think that a lot of the ideas that we have, need to be directed towards praxis, because the urgency of what we’re looking at as well is something that is irrespective of what line of environmental law you’re engaged in.

It’s always important to bring it back to praxis and think about how we can make actual progress and change in this area. I think Bristol Law School is very fortunate to have someone like you who’s been successfully doing that for many, many years now, to speak with students and hopefully encourage them to study environmental law.

James: You’re right, praxis is what it’s all about. It’s what we do, and ideology has no place it – it’s about what you can actually do. And when you get the sense that you can do something, it generates enormous hope in yourself and in others.

There was a study last week that 70 percent of young people are having anxiety about climate change. Very understandable – but for me, how you get beyond that anxiety is to say, ah, there is something I can do about it.

For people studying law, there is an immense amount that they can do about it. It’s really self-empowering, hope-giving activity that you can share with others.

It is truly a great honour to have been made Honorary Professor at Bristol, because I’ve always admired the Law School and the work that gets done there and also its students who come out of it.

I’ve always loved working with students and love the opportunity students have of thinking about things from square one. Imagining what would the law have to look like if we were really going to save the planet and if we’re really going to save civilization.

If you go into it that way, you will see things in a different way. That’s an amazing opportunity – and an amazing opportunity for me to be an Honorary Professor. It’s a big deal!

Find out more about our ClientEarth Conversation Series online where you can also book your place on the Environment and Energy Law Society roundtable to discuss the issues raised in the series with fellow staff and students.