Media and Communications Officer, Erin Meeking, met with Professor Don Anton this summer to discuss his career, international environmental law, breaking into the field, and the future of the practice.
Don is a leading public international lawyer and Chair in International at Griffith Law School. Maintaining an active international law practice, he has served as Counsel to the International Union for the Conservation of Nature (IUCN) before the International Tribunal for the Law of the Sea, and in such cases as Chevron v Donziger and Kiobel v Royal Dutch Petroleum. He consults regularly with government and international organisations on matters of international law, and is active in various international law bodies. Don was also Director of Policy and Senior Solicitor with the Environmental Defenders Office from 1997-2000.
To start, could you please tell us a bit about your current roles and those organisations?
Currently, I hold the inaugural Chair in International Law at Griffith Law School. I am also serving as the Acting Director of the Law Futures Centre at Griffith University. The Law Futures Centre is geared around four programs, one of which is Law and Nature and one of which is Law and Global Change. So the synergies between international law and the natural environment are prominent in the Centre.
What drew you to a career in international public law, and environmental law specifically?
Interestingly, in law school I studied neither international law nor environmental law. I had no interest in those subjects, but was more interested in estate planning and tax. Once I got out into practice I found that those areas really weren’t of strong interest to me. Luckily, the law being what it is, it provides an opportunity to reinvent yourself; to branch out and find new interests.
I graduated from law school in 1986, and in 1988 we had the Chernobyl incident which peaked my interest in international environmental law because of the harm that was caused from radioactive fallout. It seemed to me that law was inadequate in providing transboundary environmental protection or in establishing responsibility for transboundary environmental harm. Of course, we had the first global environmental meeting of the international community takes place in Stockholm in 1972, but the development of international law in this area really didn't take off until after the Chernobyl Incident in the lead up to the 1992 Rio Conference on Environment and Development. At that point, the proliferation of international environmental law-making really took off, but it was really Chernobyl that sparked my interest in further studies and in educating myself in environmental and international law.
What do you believe to be the greatest challenge you have faced whilst working in environmental law?
Perhaps the greatest challenge was breaking into the field. I didn’t study international law or environmental law, so had no expertise and, indeed, was largely ignorant in approaching the field and in attempting to recreate myself as an international environmental lawyer. Serendipity plays a large part in everyone’s career; there is no doubt about it. For me, I came to Australia in order to pursue international environmental law. I had never been to Australia and didn’t know anyone in Australia, but still came in 1991 on scholarships to study international environmental law as it was emerging.
Almost immediately after arriving in Sydney, I heard about the NSW Environmental Defenders Office, Australia’s biggest public interest environmental law firm, and began volunteering. People working there were generous with their time and advice, and welcomed whatever limited assistance I could provide. Many of the individuals I was working with at the time have gone on to do important things, including two individuals, Nicola Pain and Brian Preston, who went on to become judges on the Land and Environment Court in NSW. Those connections, and connections I made through the university, especially Ben Boar who was a professor of environmental law, were instrumental with helping me on my career path.
I also met my future wife at an early ANZSIL conference in Canberra in 1991. She is now Professor Penelope Matthew (Dean of Griffith Law School). But back then, unmarried, I decided to follow her to Columbia University where she was completing her doctorate. Through serendipity again, whilst I was there Lou Henken, one of the great international lawyers of the 21st century, hired me as his research assistant. It was through his generosity, and the generosity of those other individuals mentioned, that a path was opened for me to become an international environmental lawyer.
From my experience, breaking into the field and commencing a career is about creating your own opportunities; making yourself available; never saying no; and accepting all invitations (even those that do not pay). Especially at the start, it is important to say ‘yes’, even if the request sounds like pure drudgery.
Have you faced any negativity for choosing to pursue an environmentally focussed career?
Whilst I was Director of Policy and Senior Solicitor at the Environmental Defenders Office (EDO) our funding was always under threat. In 1997, the ability to use our funding was significantly limited by the Commonwealth Government. We were prohibited from using Commonwealth funding for litigation-related activity, the very purpose for which the EDO was created. This was the largest part of our budget at that time, and was instead directed towards community education about environmental law and rights.
I haven’t personally been threatened. That said, I am also a member of the Environmental Law Alliance Worldwide (ELAW), comprising public interest environmental lawyers and scientists from over 60 countries. ELAW is a closed network where we attempt to leverage legal and scientific expertise to try and give public interest lawyers around the world some parity in public interest litigation as they go up against major law firms who have significantly more resources. I know individuals in the ELAW have been threatened physically, have been subject to ‘slapsuits’ and defamation actions, and whose lives have been in danger. Depending where you live, there is the potential for personal safety to be threatened.
What do you believe is the most rewarding aspect of your positions?
I think it is maintaining an active law practice and combining that with teaching. All my practice is pro bono, and I have been involved in some significant litigation involving human rights and the environment. Seeing students make connections between practice and teaching through the cases have been some of the most heart-warming aspects of my position.
New areas of environmental law are developing all of the time (for example, the current tribunals for the rights of nature), what are your suggestions regarding becoming involved in the frontier areas of the law?
I’ll reiterate basic points I’ve already made: Read. Write. Publish. Volunteer. Make yourself an expert.
Do you feel that the Australia Government is paying enough weight to environmental law?
Australia has been a pioneer in developing environmental law and environmental law courts, and I would not say anything to disparage those efforts. Indeed, in 1992, Australia was the first country to appoint an ambassador for the environment to look after its global international environmental interest. Of course, that no longer exists but it was a great idea and should be revisited.
More generally, environmental law gets the lip service of government, but its effectiveness is often in doubt. By effective, I mean that we are able to measure tangible environmental improvements – or at least the cessation of damage – attributable to environmental law and regulation on the books. Effectiveness, in this sense, is a very measurable thing.
Much of our environmental law does not have that sort of effectiveness. It may operate as intended on paper, but almost all environmental indicators continue to show environmental decline year after year. Part of the problem is that environmental law is a procedural area of law, rather than a substantive area of law; it requires us to jump through hoops and meet certain guidelines, but almost never imposes absolute limits. Decision-makers must weigh potential environmental harm as a factor in approving a development, but in the end environmental law allows the decision maker to exercise discretion to allow a development that will clearly harm the environment, so long as procedures required by environmental law are followed. Clearly procedure isn’t enough. I think we need to be establishing substantive environmental limits on development to ensure effective environmental protection.
Climate change is an area of environmental law where we are particularly failing in Australia. We don’t do enough and we tend to ignore the issue. My generation, especially, is failing our future generations.
In your opinion, what is the greatest challenge facing the practice of environmental law into the future?
Generally, the greatest challenge for the practice is addressing climate change and the challenges it presents. Of that, I have no doubt.
Do you think the law is lagging behind current scientific understandings of the environment, eg. The capacity of intelligence of plants and animals, and if so how do you think these areas will develop over time?
Law is a conservative creature. It tends to lag behind social and scientific development because of its nature. In environmental law one technique that has been developed, which is highly important and closely tied to scientific development, is that we usually establish monitoring requirements we permit development. The potential for adaptation can be built into permits and licences and other approvals so that we can take developments in science into account and change, as necessary, to meet the changing needs of the environment. Changing the law is, of course, more difficult and politicians can refuse to change the law to meet new science and evidence. There, accountability is had at the ballot box.
For our members, what one bit of advice do you have for students seeking to break into environmental law?
First, you need to define what you believe environmental law is and what an environmental lawyer does. We might say at a superficial level that an “environmental lawyer responds to environmental protection goals and requirements from the perspective of his or her specific client". This legal work usually places the environmental lawyer in the midst of a contentious process concerning standards of conduct that govern proposed activities that will (or may) have significant environmental impacts.
To describe an environmental lawyer in this general way, however, is to present a bland description of him or her as merely a "hired gun", possessing no personal or environmental values. This description clearly does not accord with the idea of the environmental lawyer as one who does, in fact, speak for the trees; who does, in fact, try to ensure, through law, that economic and social priorities do not overwhelm society’s environmental values; who does, in fact, promote an ethic that affirms the right of our environmental heritage to a continued existence, and, at least in spots, a continued existence in a natural state.
In point of fact, however, only a small fraction of solicitors and barristers actually engage in a law practice that principally focuses on the protection of the natural environment in this way. The vast majority of so-called environmental lawyers would at least appear to do just the opposite; most seem to advise and represent polluters and developers seeking to avoid the rigours and requirements of environmental regulation or escape liability for environmental harm they have caused.
My point here, of course, is not that polluters and developers do not deserve legal representation (or that the lawyers who advise and represent them are bad people). Rather, my point is that a true environmental lawyer, properly so-called, uses the law to defend the environment.
But really, can things be as simple as this? The answer, of course, is no. While it is difficult to reconcile the role of a lawyer who serves a regulated entity (a polluter or developer) with the promotion of environmental quality -- must we conclude that lawyers serving these sorts of clients either: (i) are devoid of concern for environmental protection, or (ii) are compelled to set aside their environmental concern to provide effective representation to the regulated entity? This question is often distressing, particularly when pondered by idealistic young people contemplating a career in environmental law.
Before the question can be answered, its implicit premise should be examined. The premise is that any regulated entity is, by definition, opposed to environmental protection goals and their associated requirements. It is a "forces of good" versus "forces of evil" dichotomy, which is largely, if not entirely, false. It is usually both simplistic and erroneous to see a regulated entity's objectives as purely "anti-environmental", and thus to see its lawyer's environmental bona fides as completely lacking.
Indeed, in my early years in private practice I used to represent mining companies in the establishment of heap leach gold mines across North America. While I believe that my environmental commitment was just as strong then as it is now, I felt at the time that I would be able to influence better environmental outcomes working from the "inside" advising mining companies than by "ranting and raving" from the outside. My experience in this regard was largely mixed.
But the point I am trying to make, and the one that you should remember, is that a lawyers' basic role -- whether representing a government environmental department, a polluter or developer, or an environmental citizens group -- is to serve justice. This sensitivity to fair and equitable treatment and fundamental values -- both environmental and non-environmental -- and the responsibility to work to reconcile them when conflicts appear are hallmarks of lawyers toiling in the field of environmental law, no matter what side. And so, for me, a true environmental lawyer working to protect the environment, through his or her service to justice, is one that might be found anywhere.
Now breaking into the field, like starting anything that needs to be long-term and sustainable, is hard. It is especially tough when you are making decisions about family, where to live, what amount you need to live, whether you're comfortable raising your own salary, and so on.
Volunteering, networking, being entrepreneurial are all ways that you can get experience in order to establish a career. I’ll go back to what I said earlier. Breaking into the field is all about creating your own opportunities; making yourself available; never saying no; accepting all invitations; establishing reputation by publishing; getting yourself known by volunteering.
For more information, or to contact Don Anton, please see https://www.griffith.edu.au/criminology-law/griffith-law-school/staff/don-anton.