Observer  /  Law

Meet the Earth’s Lawyers

Original publication by Stephen Armstrong for on 6 January 2023

ClientEarth helps shape new laws and enforce old ones to protect the planet and its most vulnerable inhabitants.

Masig Island, one of the Torres Strait Islands, is being steadily eroded away.

IN MARCH 2017, a violent storm hit the Torres Strait Islands, a scattered archipelago off Australia’s northern coast. On Masig Island, a low-lying coral cay that’s home to some 270 people, the wind ripped down trees, and huge tidal surges flooded houses and an old cemetery.

The next day, Yessie Mosby—a power station engineer, musician, and craftsman—was walking on the beach with his children when he found the skeletal remains of his grandmother, exhumed by the storm. Her bones were lying on the sand just meters from the shore.

The sacred burial ground was once a good distance from the water, but the sea had been creeping closer as erosion ate away the low-lying land. The storm washed away the site’s last defenses. Mosby spent the day with his family gathering his ancestor’s bones.

“I was holding her jaw and my uncle was holding the top part of her head, and we were placing them in buckets,” he says, speaking over Zoom from his island home. “I was, like, ‘Nah, man, this is not right.’” As he watched his children collecting his grandmother’s ribs and pelvis bones “like shells off the beach,” Mosby broke into tears. “I said, ‘Something has to be done.’”

But getting something done was a daunting task. The Torres Strait’s 274 islands and their Indigenous peoples have long been overlooked by the Australian government. Despite the fascinating culture—a fusion of ancient and modern, with houses painted in the garish hues of local rugby league teams and deceased ancestors revered like living kin—it’s an area that many Australians would struggle to find on a map. The nearest state capital, Brisbane, is more than a thousand miles away—a three-day journey by bus and ferry, with no direct flights. 

Local politicians had been asking authorities for money for sea walls and other infrastructure for years, but the government’s best offer was to move the whole community to the mainland, which would have meant leaving their way of life behind.

But Mosby was lucky. A young lawyer knew Masig Island well, and was familiar with the plight of its people. Two years after Mosby’s macabre find, she represented a small group of islanders in a groundbreaking legal action that could change the way countries are held to account on climate change, and help people on low-lying islands save their way of life.

IN 2009, LAW graduate Sophie Marjanac took a junior job in the Australian government department that manages Indigenous land rights in the Torres Strait. She quickly fell in love with the culture and the people, but she also noticed how the islands were changing.

New houses were being built on stilts to counteract annual flooding. Old trees were dying as their roots were eaten away by the sea. Sometimes, whole sections of islands just disappeared. Fishing seasons were disrupted, crops struggled with violent weather, and life for the Torres Strait islanders got harder every year as the climate became more hostile. “The whole culture is based on seasons, because they know that when the stars are at a certain place in the sky at a certain time of year, that’s when those fish are jumping or that’s when that tree is fruiting,” Marjanac says. “The change in the seasons that climate change creates turns everything on its head.”

By the time the storm hit the islands in 2017, Marjanac was working for ClientEarth, a London-based team of lawyers who challenge companies and governments on their environmental record. Visiting ClientEarth’s London office on an unseasonably warm autumn afternoon feels a little like a trip to Silicon Valley—it’s based in a converted industrial space with a huge kitchen, breakout spaces, and plenty of exposed brickwork. 

But ClientEarth is actually a charity, founded in 2006 by US-born lawyer James Thornton, who made his name in the 1980s battling with the Reagan administration to get the Clean Water Act enforced. Thornton founded ClientEarth to act as the “special forces” of the environmental movement, with the driving philosophy that the Earth was his most important client. 

Initially, Thornton thought lobbying would be ClientEarth’s most powerful tool—talking to scientists and policymakers, and influencing the development of new laws. But it soon found itself using legal action to make sure existing laws were being enforced properly, too.

In 2008, ClientEarth forced the UK government to fulfill its legal duty to conduct environmental assessments of two proposed coal-fired power plants at Kingsnorth in Kent. It followed that by challenging the French government to enforce an existing European Union ban on drift-net fishing, which has been outlawed since 2015 as the nets can trap sharks, dolphins, whales, and even seabirds.

By 2010, ClientEarth’s lawyers had realized they could also protect the planet not just by influencing new laws and enforcing old ones, but also by setting precedents that used existing laws in new, far-reaching ways. In Poland, from a new office in Warsaw, it challenged the construction of new coal power stations and sued ​​the Bełchatów power plant, Europe’s biggest coal-fired power station, which had emitted a billion metric tons of CO2 into the atmosphere over its lifetime. Even though Bełchatów was technically operating within environmental regulations, ClientEarth argued that under Polish law the company owners were obliged to take care of public interest and public health. The judge agreed, set a legal precedent, and the plant closed down.

Today, ClientEarth has 300 staff and additional offices in Brussels, Berlin, Madrid, Los Angeles, and Beijing. It has continued to co-opt existing laws for new purposes. In April 2020, for instance, it successfully pressured Barclays Bank into announcing a net-zero target by suggesting its fossil fuel investments were placing the company directors in breach of their fiduciary duty. 

Under the UK Companies’ Act 2008, fiduciary duty includes acting in the best interests of the company. ClientEarth flipped that around, arguing that Barclays’ fossil fuel investments were damaging the company’s long-term survival and were therefore a breach of the directors’ duties. In March 2022, ClientEarth took that strategy further by taking legal action against Shell’s board of directors on behalf of the company itself—seeking to hold 13 of them personally responsible for Shell’s failure to pursue carbon neutrality. It’s waiting for a response. 

“We are acting in love, not anger, to stop the company being driven off the cliff by these directors,” explains Laura Clarke, ClientEarth’s new CEO, who took over day-to-day running of the charity in September 2022, as Thornton became its president. “And we are going for the board of director’s sense of personal responsibility. That is a powerful point of leverage.”

ClientEarth’s interpretation of fiduciary duty has never been applied before, says Marjanac, but she is confident that will change. “Fiduciary duty is about prudent risk management. Human rights are about the inherent dignity of the individual. The crises of the modern world are the climate crisis and the biodiversity crisis. It’s only natural that the law will step up and adapt.”

IN THE CASE of the Torres Strait islanders, Marjanac and ClientEarth turned to Article 27 of the Universal Declaration of Human Rights, which protects an individual’s right to participate in and enjoy their culture.

Article 27 was originally designed to protect minority groups against genocide and colonial mismanagement in the wake of the Second World War, but ClientEarth sought to adapt and extend its protections. 

In September 2019, Marjanac presented a petition to the UN Human Rights Committee, a body of 18 legal experts that oversees compliance with the treaty and acts as a de facto court (it has no enforcement powers but states generally comply with its rulings).

ClientEarth argued that the Australian government’s failure to protect the fragile ecosystems of the Torres Strait violated the islanders’ Article 27 rights to their culture, and their Article 17 rights to be free from interference in privacy, family, and home. “We all have a right to family, home, and culture under international law,” Marjanac says. “When I was there even the children said, ‘If we had to leave the island, we couldn’t leave our loved ones—we couldn’t leave the grandparents and the great-grandparents behind.’”

The Australian government fought back. In August 2020, it asked the committee to dismiss the case, denying that climate change was impacting the human rights of the islanders, and that—because Australia is not the main or only contributor to global warming—the effects of climate change on its citizens are not its legal responsibility under human rights law. Later that year, the UN’s legal experts agreed with the islanders, but the Australian government doubled down, arguing that it was already doing enough to fight climate change, and that future impacts were too uncertain to require action. 

As it waited for the final UN decision, ClientEarth continued to put pressure on governments and organizations around the world. In July 2022, as the UK sweated through record temperatures, the High Court ruled in its favor, finding that the government’s net-zero strategy breaches the Climate Change Act and needs to be strengthened. The charity launched cases in Poland from farmers, business owners, and parents suing the government for failing to reduce greenhouse gasses. There’s legal action looming in France over corporate plastic pollution by nine of the country’s largest food companies.

Clarke and her team are helping the EU strengthen anti-deforestation legislation, and advising the Chinese Supreme Court on how to green up the Belt and Road Initiative. “We really know we’re winning when we’re at the point where all we need to say is, ‘Don’t make me write another letter,’” she says.

Finally, in September 2022—three years after the initial complaint—the United Nations Human Rights Committee agreed with ClientEarth’s new interpretation of human rights in the face of climate change. Australia had violated the right to culture, and the right to be free from interference with privacy, family, and home. The Committee asked the Australian government to compensate the islanders “for the harm they have suffered, to engage in meaningful consultations to assess their needs, and take measures to secure their communities’ safe existence.”

Securing the money will take time, Marjanac says, but the ruling means other low-lying areas finally have a legal recourse in their battle to survive. The committee specifically rejected Australia’s claim that individual countries can’t be held responsible for the effects of climate change, and agreed that international environmental obligations are a human rights issue.

It was early evening in the Torres Strait when the news reached Yessie Mosby. “I shed tears of joy, and I know that my ancestors were rejoicing,” he says. “I know that it’s not the end, but I know that a lot of doors have been opened. I was so happy that I wouldn’t be a refugee. Nobody on Earth should be asking their children to put their grandmother’s remains in a bucket.”

This article was originally published in the January/February 2023 issue of WIRED UK magazine.

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