Climate change has created a fertile legal environment but barriers to obtaining justice in the courts and to acquiring legal aid can turn off lawyers, reports Grania Langdon-Down


As the UK Environmental Law Association (UKELA) celebrated its 20th anniversary last month, practitioners are predicting a ‘whole new generation’ of environmental law with climate change, energy conservation, waste and re-cycling, and energy efficient buildings among the big issues on the agenda.



The association was formed by a small core of lawyers, who wanted a forum to debate growing issues surrounding the environment. Since then, environmental law has become an important practice area in its own right, while the association, which now has 800 members, has broadened its membership. One new area where it is promoting debate is ‘wild law’, which seeks to protect the Earth’s community, including animals, plants, rivers and ecosystems.



Andrew Waite, co-ordinator of the environment group at City firm Berwin Leighton Paisner, was a lecturer in environmental law at Southampton University when he came up with the idea for UKELA, acting as its secretary for the first four years. He was also involved in setting up the European Environmental Law Association in 1990.



Reflecting on the UK association’s achievements, he says: ‘It rapidly won the respect of government. We advised on aspects of the Environmental Protection Bill, which was a watershed in environmental legislation, and from then on, UKELA has been influential in shaping new legislation.’



The association marked its anniversary with a sell-out conference at Bath University. Debates focused on climate change, including the legal issues surrounding carbon capture and storage, flooding risks, wind and nuclear energy.



With such key issues at stake, opportunities for specialising in environmental law run the gamut from pressure groups and regulatory bodies, through sole practices, niche boutiques, public interest firms, to regional, national and City firms.



UKELA’s current chairman, Daniel Lawrence, started specialising in this area in the early 1990s and is now with the environment, planning and regulatory group at City firm Freshfields Bruckhaus Deringer. In the early days, he says, ‘it could sometimes be a challenge to persuade corporate and finance lawyers, as well as clients, to recognise the need to include environmental advice in the context of mergers and acquisitions, and corporate finance transactions.’



However, environment-related issues are now standard components of such deals. ‘If anything,’ he says, ‘the scope for environmental legal advice is now increasing, fuelled by developments such as the EU emissions trading scheme, the REACH Regulation, and the Environmental Liability Directive.’



Pat Thomas, chairwoman of the Law Society’s planning and environment committee, combines her practice Pat Thomas Planning Law with a consultancy role at London firm Farrer & Co. She recalls how, 20 years ago, environmental law started ‘with a whoosh’. She says: ‘Everybody said this is going to be a huge area with a lot of law and a number of firms immediately sized up environmental practices.



‘But the expected surge of work from environmental liability claims, following the American experience, didn’t really develop. There have been some high-profile cases but you could count them on the fingers of two hands.



‘What we are now finding is that we are going into not just a new chapter but a whole new volume of environmental issues. It is building up with climate change and all the new legislation coming out of Europe, which is being gold-plated by the UK government, to create a whole new generation of environmental law.’



Richard Burnett-Hall, an intellectual property lawyer at the time, set up the first comprehensive stand-alone environmental law practice in the country in 1982, at the instigation of a US lawyer who wanted to know about developments in the UK and Europe for his US clients. He started looking at how liabilities could arise and how they could be dealt with in contractual ways. ‘In the early days, I got a bit of stick from my colleagues for creating problems for them in transactions when the other side wasn’t bothered.’



Two decades on, he says litigation is beginning to take off because the amounts of money involved if a business has to stop to clear a site, or if there are potential health problems for workers or neighbours, are so huge.



When it comes to environmental pollution, Mr Burnett-Hall, former head of environmental law at London firm Bristows, where he is now a consultant, says economic instruments are starting to replace the old ‘command and control’ tactics. ‘We are now moving into the more sophisticated area of selling allowances, which is effectively a banking-type transaction and a long way from an environmental law perspective.’



For Paul Davies, head of environmental law at City firm Macfarlanes, key issues in the field have come in waves. ‘Ten years ago, everyone was focusing on contaminated land; five years ago, the controversy was over new asbestos regulations; and now we are going to be grappling with climate-change issues. And, if commercial buildings are going to have to have an energy performance certificate, it will be another reason why the practice area continues to grow.’



However, for claimant lawyers, the area is ‘very arid’, says Martyn Day, senior partner of London firm Leigh Day & Co, with most moving away because of difficulties over costs and the high failure rate of cases. ‘Legal aid is very difficult to get for these cases, while you haven’t a chance of getting it for multi-party cases. The only real route is “no win, no fee”, backed by after-the-event insurance, and that is taking a mega risk.’



He feels the courts have a ‘real blind spot’ about environment cases, though he says they are becoming more sympathetic with protective costs orders. ‘The courts have never really taken to the environment as they have with worker liability. I am a big fan of the idea of a specialist environment court because you might then get some judges who are interested in the issues. In this country, cases have foundered one after another – though you do get the odd moment of glory, as Greenpeace did recently [over the government’s nuclear energy plans], but they are pretty rare beacons of light.



‘The great danger is that the corporate world has begun to realise that the law is pretty toothless when it comes to individual action, although obviously they have to keep a close eye on the regulator.’



Andrew Bryce, a founder member and former chairman of UKELA, set up as a sole practitioner in Cambridge in 1994, specialising in criminal defence work and ‘troubleshooting’ for the waste industry. ‘There is a big debate about environmental justice. Legal aid has become so difficult. There are also moves in my area with likely changes to environmental penalties under the draft Regulatory Enforcement and Sanctions Bill.’



Access to environmental justice is a key issue. The Environmental Liability Directive introduces specific access to justice provisions. Mr Lawrence says: ‘The environmental enforcement agencies are likely to have their work cut out for them, for example with requests by individuals and non-governmental organisations (NGOs) that action be taken to require remediation of environmental damage under the directive.’



Solicitor-advocate Howard McCann is principal prosecutor at the Environment Agency’s Reading office. He highlights the difficulty of presenting environmental cases among a ‘smorgasbord’ of non-Crown Prosecution Service prosecutions. ‘You might be in the magistrates’ court stuck between TV licensing prosecutions and benefit fraud. The trick is to pitch the case at the right level so the magistrates understand why you are bringing the prosecution and what the aggravating features are. In the Crown Court, you may be in a general list of mainstream crime. You generally get good results but occasionally you get the odd curve ball.’



The agency is responsible for numerous functions, from issuing angling licenses to tackling serious crimes such as illegal organised waste disposal. Mr McCann, who has been with the agency for five years, says: ‘I have just been working on a case involving re-cyclable materials taken to Indonesia, China and India in breach of national and EU regulations. It’s taken two and a half years, ending up in the Crown Court, where the company pleaded guilty and was fined £55,000 and we were awarded £85,000 in costs.’



He had worked in private practice ‘to pay the bills’ after doing a masters degree in environmental law. ‘But it wasn’t what I wanted to do. Working here is very rewarding, especially when you are dealing with issues that have international repercussions.’



Phil Michaels swapped private practice for Friends of the Earth because he felt ‘passionate’ about its aims. As head of legal, he combines the role of senior in-house legal adviser with running a rights and justice centre, acting pro bono for members of the public, community groups and NGOs.



Recent cases include allotments and the Olympic Games. ‘We also get involved in public order issues, where they relate to environmental protests. We brought test cases in relation to the Critical Mass cycle rides, which are now going to the House of Lords.’



He describes his job as a campaigning lawyer as a ‘real mix of law and politics. You need to be relatively media savvy, have good political antennae, and do what most lawyers should be able to do – communicate in non-legal language’.



Mr Burnett-Hall says environmental lawyers on the corporate side have to be more circumspect. ‘You have to take a balanced view. If you are totally unsympathetic towards the green movement, you aren’t going to be able to assess their feelings. But if you are totally committed to them, you won’t be able to be objective when a corporate finds itself up against them.’



Mr Waite, whose practice focuses on issues around contaminated land, says: ‘My impression is that most lawyers who specialise in environmental law have an interest in environmental protection, which is not to say we are all crusading against industry – rather we see our role as advising industry. We hope the result will be beneficial for the environment, but that doesn’t mean we don’t fight hard to protect our clients against liabilities when they are challenged.



‘The attraction for me is that, by helping clients resolve practical problems, I hope it will play a role in protecting the world for the future. That may sound grandiose but we all have to play our part.’



Grania Langdon-Down is a freelance journalist