Head of leading green law firm warns that punitive costs will deter British citizens from bringing cases against the government and polluters

It is now harder for UK citizens to hold government and polluters accountable for damaging the environment than it is for people in China, the head of a leading environmental law firm has told the Guardian.

Changes to the costs and administration of environmental legal challenges in the UK could potentially “chill the ability of citizens to bring cases” to protect the environment, said James Thornton, chief executive of NGO ClientEarth, ahead of delivering the annual Garner lecture to a host of environmental leaders on Wednesday.

In the lecture, Thornton will criticise government proposals to dramatically increase the amount for which charities and individuals are liable if they lose an environmental case deemed to be in the public interest.

The costs system is currently “the most punitive in the EU and is moving in the wrong direction”, discouraging citizens from challenging government actions that affect the environment, he will say.



In April his firm won a legal battle at the supreme court in which the government was found to be breaching EU limits on air pollution – linked to thousands of premature deaths every year – and ordered to produce a clean-up plan by the end of the year.

In China and the US, citizens can bring an environmental legal challenge in the public interest – a case where they stand to gain no more than any other member of the public – without fear of incurring costs should they lose.

But in the UK charities and individuals launching environmental challenges face paying initial costs to the other side of up to £5,000 and £10,000 if they lose, while the defendant – in most cases the government – stands to pay £35,000.

The government is now proposing to reduce the initial cost caps for defendants to £25,000 while doubling the cost caps for charities and individuals, with the risk of these limits being removed altogether by a judge.

A Ministry of Justice spokesperson said: “These proposals are designed to make sure challenges can still be brought without encouraging meritless claims which cause unreasonable costs and delays.”

China has introduced measures to empower citizens to use the law as a tool to protect the environment, according to Thornton. In January, a new environmental protection law was introduced which allows NGOs to launch legal challenges against polluters for the first time.

There have been 25 such legal challenges launched since the enaction of the law in China, Thornton will say. His firm is now helping the Chinese authorities to draft improved laws and regulations. But others have questioned whether the crackdown on polluters will be enforced in China, where it is believed that 4,000 are dying prematurely every day as a result of air pollution.

“This is a real gamechanger where citizens can sue companies in Chinese court. It is an amazing change and in their attitude we have much to learn,” Thornton will say.

Thornton also said it is not possible under UK law to hold fossil fuel companies adequately to account for emitting more pollution than their permits allow because unlike in other countries, you must be able to prove they have undertaken criminal activity or that the claimant has suffered personal damage.

“You can’t really challenge a polluter here. You can do it in China, you can do it in France, you can do it in America, but not here. The law doesn’t allow it,” he said.

His intervention comes less than three weeks before the start of a landmark climate change conference in Paris where world leaders will meet to negotiate a new deal on limiting greenhouse gas emissions.

“It’s a sad demonstration of a country going retrograde at a time when they should be saying publicly in every possible way that we need to protect the environment and if we get it wrong citizens should have the right to come and talk to judges in a way that’s effective,” he told the Guardian.

“We are entering a new era in which governments are going to have to work harder, be more transparent and bring citizens along if we’re going to solve climate change for example. These [proposed changes] are ways of trying to remove yourself from being challenged by citizens when you act illegally. It’s terrifying.”