With the rapid decline of biodiversity worldwide, Bates Wells is working with Michelle Meagher to consider how the law can be used and advanced to provide solutions. In this article, Michelle sets the scene.
Nature is our refuge, our strength, our spirit, our history. It is how we feed, clothe, heal, warm, and house ourselves. It is how we find our peace. It also underpins our economies. Nature in all its richness is critical to human well-being. This is reflected – up to a point – in the laws by which we live. However, the vast majority of environmental and conservation legislation is aimed at limiting the damage we cause to nature whilst exploiting it. Experience suggests a reframing is required – both in terms of how we craft and how we apply our laws – which acknowledges our place within nature and our role as stewards of it.
The litany of reports of the harm we have inflicted on our own world tells the story of a self-defeating, and highly unequal, tragedy unfolding before our eyes. The State of Nature Report 2019 documents the ongoing decline in biodiversity across the UK, with a marked decline in species abundance: 15% of species are threatened with extinction. The report links this alarming trend to agricultural practice and intensification of land management, urbanisation, deforestation, the development of land for housing, and rising temperatures due to climate change, which again is driven by land use as well as greenhouse gas emissions.
72% of the UK’s land area is managed for agriculture – we have dominated the landscape for the production of food and agricultural inputs and outputs. Modern farming practices, from the use of pesticides and fertilisers, to changes in crop patterns, meat production, and the increased mechanisation of farming methods, mean that the increased productivity of agricultural land has been associated with dire consequences for British wildlife – plant, animal, bird and insect. Rachel Carson’s Silent Spring may soon be upon us.
According to the 2019 report on land use by the Intergovernmental Panel on Climate Change, the ecosystem services provided by the natural world have equivalent value to the entire annual global GDP. Of course nature has its own intrinsic value but in all our transactional industriousness, humans are reliant on the bounty provided gratis by the earth, whilst at the same time we exhaust and degrade the soil, clean air and freshwater on which life itself depends. Meanwhile, public sector expenditure to support biodiversity in the UK has fallen by 42% in the last ten years. The government is spending less just as the problems and risks are getting worse. The RSA Food, Farming and Countryside Commission makes the link between the future of land and the future of work asking, in relation to the biodiversity and climate crisis, “what is the work needed right now to recover fragile natural and human systems and who will do it?”. In other words, what can be done to halt the destruction and how can we sustain ourselves through regeneration?
Nature’s relief from the human abuses and pressures that currently impoverish and profane it will either come from the collapse of civilisation or from our ability to repress our most self-destructive impulses, hopefully the latter. Although some imagine the Age of Loneliness, when a series of mass extinctions leave only humans in persistence, in fact this is likely impossible, so reliant are we on the world we inhabit. We shall perish before the earth.
This reality raises the question of the rights of nature, with Lake Erie acquiring legal personhood in 2019. We must also consider human rights and the right to life, as the UN Special Rapporteur on extreme poverty and human rights warned that “Climate change threatens the future of human rights and risks undoing the last fifty years of progress in development, global health, and poverty reduction” and “Even under the best-case scenario, hundreds of millions will face food insecurity, forced migration, disease, and death.”
The law frames our actions in society, determining which beings and organisations have rights, which have responsibilities, and to whom those responsibilities are owed. This is the fundamental nature of the law. As the RSA Commission Report observes, law is part of what makes it easy and permissible for people — and businesses — to do the right thing and difficult, expensive, or prohibitive to do the wrong things. In this way the law has the potential to contribute to transformative systemic change in our management and relationship with the natural world.
Of course, if we want to use the law to protect the environment then conservation legislation is the most obvious candidate and there is no shortage of environmental law at the national, regional and international level, although UNEP finds these laws to be on the whole weakly enforced. Nor does what we typically think of as “conservation law” draw the full limits of the tools available or what can be achieved. The vast majority of environmental and conservation law is aimed at targeting pollution or disincentivising degradation rather than changing fundamentally humanity’s interactions and relationship with nature and proactively promoting the sustainability of environmental management. But the Urgenda case in which an NGO successfully sued the Dutch government for breaching its duty of care to society in failing to adopt sufficiently ambitious emissions mitigation targets, was a human rights case. We can rethink how we litigate for conservation.
The Urgenda case was directed at the Dutch government, but a promising line of work takes aim directly at the prime polluters and powerful companies that are at the frontline of the human interface with the environment. Such cases do not have to limit themselves to environmental or conservation law per se. Shareholders, investors, workers, pension-holders, consumers and others have leverage over companies, both statutory and under common law, that can be wielded to elicit changes in corporate behaviour based on failures to disclose, failures to mitigate, failures to avoid liability, or failures to take sufficient care. These rights can also be expanded by the law to further empower stakeholders. Rather than limiting our action to “climate change litigation”, cases increasingly take place in the context of climate change where the legal principles determined go well beyond climate responsibilities as such.
Against this background, Bates Wells is hosting a conversation in February 2020 on the topic of “What is our legal strategy to tackle the biodiversity crisis?”. We will be exploring possibilities for using the law in innovative ways, for example by changing directors’ duties; establishing the international crime of ecocide; strategic uses of judicial review; and the possibility of winding up companies in the public interest. The goal of the event is to develop a roadmap for future action and for participants to help identify new and promising avenues by which the law might be used by different actors to address our biodiversity crisis, as well as possible next steps. These will then be synthesised in the form of a legal strategy document to stimulate action. The rules of the game are ripe for renewal, and that task falls not just to government and delegated governmental agencies but also to concerned citizens, communities, economic and societal stakeholders, civil society and, of course, business. It is time to put the law to work in service of nature and humankind.
Michelle Meagher is a competition lawyer and founder of the Inclusive Competition Forum. Her book, Competition Is Killing Us, will be published by Penguin in September 2020.