What’s in a name? Why we aren't afraid of litigation
By Dr Jacob Phelps
Executive Director of Conservation-Litigation.org
We often get advised that the word “litigation” will scare away potential partners and donors.
Litigation is “too assertive”, and “legal action makes people nervous”. Friends suggest that we change our organisation's name from Conservation-Litigation.org to something more palatable and neutral. Indeed, some other organisations have stepped back from legal action, while others are supportive but keep it at arm’s length.
We’ve debated this internally many times. If anything, the feedback – while well intentioned – has left us more resolved than ever: We cannot be scared to support legal action against environmental offenders. We must hold accountable the companies, powerful individuals and organised criminal networks harming nature, whether through mining, deforestation, agricultural encroachment, pollution, or illegal wildlife trade, fishing and logging.
Many NGOs and government agencies focus on soft and voluntary approaches to engaging polluters and deforesters, such as negotiated agreements, certification schemes, incentives and promoting improved standards. These are – of course – vitally important efforts. Public policy involves a mix of “carrots and sticks”: Incentives and cooperation can create change, while excessive regulation and enforcement can be inefficient for both businesses and the public. Where effective, we should generally seek low-cost, non-conflictual approaches.
Yet, over-reliance on “soft” measures can also be also ineffective: The worst environmental offenders will not respond to gentle nudging. We need to be ready to hold them accountable.
The reticence to use legal force reflects a “hollowing out” of the State and civil society that risks giving up on accountability, and even risks collusion with offenders. Especially where government agencies have failed to act and more gentle approaches have languished, strategic liability litigation is a necessary tool of last resort. Moreover, it can help to democratise enforcement by creating additional opportunities for parties like NGOs, communities and scientists to demand accountability.
For Conservation-Litigation.org this means actively paving the way for strategic liability litigation against the environmental offenders who are often causing greatest harm to nature. It means determining existing legal pathways that are hiding in plain sight; understanding how to present courts with simple but compelling science; identifying the sectors and cases where action can drive systemic change, and empowering local stakeholders to take action against them. It also sends a message to society about the cascading impacts of environmental harm, and the opportunities for action.
Nevertheless, legal action does involve risks, and we understand why it can spur anxieties.
We work with our network to actively evaluate, understand and mitigate a range of security, legal and financial risks in context. We also support colleagues who are litigating in jurisdictions where litigation is surprisingly affordable – costing tens of thousands of dollars, rather than millions. And we focus on strategic cases and defendants where courtroom action is a last resort.
The environmental law and conservation ecosystems are necessarily diverse, but we all share common interests in forcing accountability, disrupting the status quo of harmful sectors and remedying nature. Litigation is an additional, under-utilised and highly complementary strategy that can drive these aims.