You can lead the court to water, but can you make it drink?

ARTICLE

You can lead the court to water, but can you make it drink?

The rising tide of biodiversity litigation and the global legal response

The global forecast – the perfect legal storm

According to the World Wildlife Fund’s biennial Living Plant Report every hour the World loses three species. The Report explains that we have lost one third of all mangrove forests, one fifth of all global coral reefs and we have caused the trophic collapse of ecosystems. From 1970 to 2016, there was an average 68% decline in the Living Planet Index (data which monitors living vertebrate species), meaning that mammals, birds, reptiles, and fish have dropped by more than two thirds in just over 45 years.

The decline in biodiversity impacts the natural world, human health and well-being and on the services which humans depend, which the G8 estimates to be USD 125-140 trillion per year or 1.5 times the size of global gross domestic product.

Therefore, it is no surprise that biodiversity litigation is about to flood into court rooms, indeed it has already been quietly percolating through the legal system for the last few years.

Biodiversity litigation and the legal response

The causes of action for biodiversity litigation are vast and have developed from breaches of law which impact biodiversity to fighting to establish legal rights for individual animals.

Breach of fundamental rights

The Supreme Court of Colombia in 2018 reversed a lower court decision relating to the connection between the deforestation of the Amazon rainforest in the country and the impact on fundamental human rights of right to life and to a healthy environment. The Court found that the two are “substantially linked”. The Court determined that the degradation of the rainforest resulted in a breach of fundamental rights of the 25 youthful plaintiffs (aged 5-26). In finding this connection, the Court also found that the Colombian Amazon was a “subject of rights” and should be protected, conserved and restored which would also help to restore the breaches to the fundamental rights.1

Breach of law

In both China and the United States, differing approaches were taken when cases relating to the protection of endangered species came before the courts.

In China, the Yunnan High People’s Court in 2020 found that although a hydroelectric dam’s completion was to be indefinitely halted due to the impact on the endangered Green Peacock, that the environmental impact assessment, which was carried out which approved the planning and building of the dam on the only remaining habitat for the endangered bird, was not breached. This was due to the subjective and objective assessments that should and were carried out.

On the other hand, in the United States District Court for the District of Columbia found in favour of the Center for Biological Diversity against the Secretary of Commerce in a case2 regarding the breach of the Endangered Species Act and Marine Mammal Protection Act. The Court found that there was a failure to protect North Atlantic Right Whales from deadly entanglement in American lobster fishing equipment. The finding came after a case was launched on the basis that the legislation was breached due to the failure to comply with the requirements of an incidental take statement which authorised zero incidental deaths of the whales, when there were in fact three expected yearly from the statement and failure to take steps to prevent further danger to the whale population through the unsatisfactory biological opinions obtained.

Habeas Corpus and fundamental rights

Causes of action now also focus on the individual animals at stake, as can be seen in The Non-Human Rights Project’s petition before the State of New York’s Supreme Court in Suffolk County on behalf of two chimpanzees, Hercules and Leo, who were detained at a university laboratory 3. The petition was on the grounds of the writ of habeas corpus which would recognise their right to bodily liberty and thus their right to legal personhood; they could then have been released to a sanctuary. This was the first ever use of habeas corpus, the right to appear before court to contest their unlawful detention or imprisonment, for an animal claimant. Recognising that Hercules and Leo were unlawfully detained would recognise their right to bodily liberty, a fundamental right, which would have made them rights holders or legal persons in the eyes of the law. While their case was ultimately unsuccessful, it is the first of multiple cases trying to establish the right to bodily liberty for animals suffering in captivity.

Duty of diligence

A group of non-governmental organisations are suing the French supermarket chain Casino, for violation of the Devoir de Vigilance, Loi 2017-399 4. The law requires French corporates to establish, publish and implement measures to identify risks in their supply chains to human rights, the environment and fundamental freedoms. The organisations have claimed that Casino has failed in its duty of diligence through its beef supply chain, where the three relevant slaughterhouses have been responsible for the deforestation of an area five times the size of Paris from 2008-2020.

Litigation going forward

With the outcomes of COP15 and the Kunming-Montreal Global Biodiversity Framework likely to be heavily monitored and the implementation of the Taskforce on Nature Related Financial Disclosures in 2023 and further legislation aimed at protecting biodiversity on the horizon, we can only expect further litigation on behalf of the natural world. What is abundantly clear is that litigation on behalf of biodiversity is here to remain, what remains to be seen is the extent to which the courts are willing to protect the natural world.

While not all of the cases have been successful and the courts have yet to fully grapple with issues such as legal personhood for animals, what is clear is that biodiversity litigation should be taken seriously and the courtroom is starting to grapple with the elephant in the room. 

Riley Forson

Riley Forson

Trainee Solicitor, Macfarlanes

1. Demanda Generaciones Futuraas v Minambiente [2018], 11001-22-03-000-2018-00319-01.

2. Center for Biological Diversity, et al v Gian Raimondo and Maine Lobstersmen’s Association Civil Action NO 18-112 (JEB) [2022].

3. The Non-Human Rights Project Inc., on behalf of Hercules and Leo v Samuel L Stanley JR M.D, as President of Stony Brook University.

4. Envol Vert et al. v Casino Guichard Perrachon S.A. (filed 2021 in the Saint-Étienne Judicial Court on 2 March 2021).