Law: Taking a fresh look at the environment: Paul Bowden, an expert in the field of environmental law, talks to Sharon Wallach

Sharon Wallach
Thursday 16 June 1994 23:02

Legal practice does not stand still. Areas of law grow or shrink in importance; others alter their nature. Paul Bowden, a partner at Freshfields, can testify to the changing face of environmental law.

'In the early 1980s I spent a lot of my time suing Greenpeace,' he says. 'Today the boot is firmly on the other foot - I have just finished six months work acting for Greenpeace against the Government and the pollution directorate (the Thorp/BNFL case).'

Environmental issues, particularly those involving public health matters, are widely aired, but Mr Bowden believes a different perspective needs to be applied. In common with many other firms, Freshfields set up a formal environmental law group five years ago. It pulled together all the expertise and areas of practice that had been around for many years. They also acquired a new focus, in part through the 1990 Environmental Protection Act.

This, says Mr Bowden, was a 'very impressive' piece of legislation that was ahead of anything happening elsewhere, even within Europe. The Freshfields team also recruited lawyers from a commercial background and a former professor of environmental law.

'I became involved because I had done a lot in the way of environmental litigation, which 10 years ago tended to be called nuisance claims,' he says. In those days, he acted largely for industrial corporations; today he is more likely to be acting for a client like Greenpeace. The hare, as he puts it, is chasing the gamekeeper.

The growth in corporate defence litigation work was unexpected, he admits. Now it accounts for the greatest part of environmental practice at Freshfields. In his view, three factors have influenced the shift in focus.

First came the increasing willingness of pressure groups to take industry to task. 'Not just Greenpeace, but also smaller groups like the Anglers' Association who get very bothered about water pollution. No messing about with complaints to the National Rivers Authority, they prosecute.'

As a result, industry has been put on the defensive. 'The sort of judicial review Greenpeace brought in the Thorp case struck at the jugular of BNFL,' he says.

The second factor concerns multi- party actions and legal aid. 'We thought we would be acting for the regulators and advising clients on the regulatory side of business,' Mr Bowden says. In reality, the clients are on the other side. 'In a sense, we have out-Americanised the Americans.'

By this, he means that contrary to expectations, environmental practice in the US focuses on commercial litigation, whereas here it is essentially the private litigant - 'the small man with a health problem taking a corporate Goliath to court'.

He believes the reason is the availability of legal aid, which is an 'inextricable part of the whole tale of growth of these very substantial claims'.

The third element is peculiarly English: the existence of judicial review which, in effect, allows the establishment to be challenged by the individual. Another uniquely English affair is a section of the 1972 Local Government Act, which effectively allows local authorities to bring actions on behalf of local taxpayers - and at their expense - against companies they consider are committing a nuisance, or in some way damaging public health.

'It is now a wholly different climate for the corporate client,' Mr Bowden emphasises. 'In the UK, it is the regulators who are under pressure, with Greenpeace and others reviewing their prosecution policies.'

Memories of the early days of his dealings with Greenpeace include the sequestration of its assets in 1983, and the off- loading of equipment from a campaigning vessel in Amsterdam as enforcement of a Dutch judgement against the group.

'Now Greenpeace says: 'If companies will not obey the law, and the regulators will not enforce it, then we, reluctantly, will take on our shoulders the the burden and the cost'.

'This places massive pressure on the corporate defendant, because every time he is taken to court, it is costing him a very substantial amount in legal fees, mostly unrecoverable.'

In theory, it is possible to settle out of court for a fraction of the costs, but in practice, says Mr Bowden, the problem is that the nature of environmental claims is very tough. 'For instance: 'You gave my late husband cancer', or 'You disabled my child' are very serious charges and pretty difficult to settle. That is why many environmental litigation cases are going all the way to trial.'

Cases against pharmaceutical companies often involving hundreds of plaintiffs have tended to collapse because of their sheer size.

Environmental cases are probably better run, Mr Bowden maintains, in part because of a willingness on the part of the plaintiffs' lawyers to be courageous enough to bring test cases. One way or another, the environmental boot is certainly now on the other foot.

(Photograph omitted)

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