Natural law – why laws for nature are the next natural step

ARTICLE

Natural law – why laws for nature are the next natural step

If, like me, you have recently received up to date compliance training and may be concerned by the growing list of anti-money laundering imprisonable offences you might unwittingly commit, well it is not getting any less daunting in other areas of compliance. If you are solicitor in residential property for example, you are likely to be checking the new energy efficiency standards for workplaces coming into force in April 2023, as explained in the Law Society’s guidance on Green Leases (www. lawsociety.org.uk/topics/climate-change/green-leasesand-minimum-energy-efficiency-standards). This guidance states that: according to the UK Green Building Council, the built environment contributes around 40% of the UK’s total greenhouse gas emissions; the UK has some of the oldest housing stock in the world and it is estimated that 80% of buildings that will exist in 2050 have already been built; and currently, the median EPC rating in England and Wales is D but the government estimates that 18% of commercial properties hold the lowest EPC ratings of F or G. There is a long way to go in order to reach the government’s environmental targets.

There will almost certainly be further rules for protection of the environment if the government is serious about its aims to achieve a target of 78% reduction in greenhouse gases by 2035 and Net Zero by 2050. However, in the UK laws for nature are not yet fully on the legislative agenda and there is no single Environmental, Social and Governance (ESG) law or regulation. Currently, regulators are introducing new rules to continue the progression of policies in various ESG-related domains –including climate change, carbon, modern slavery, trafficking, diversity/inclusion and anti-bribery/corruption. Businesses must at least be considering if not incorporating ESG policies into their culture and working practices.

Following the UK’s exit from the EU, the Environment Act 2021 (2021 Act) became the new framework of environmental protection to fill in the gaps for protection of nature, water quality, biodiversity and clean air. The 2021 Act provides the Government with powers to set new binding targets, including for air quality, water, biodiversity, and waste reduction. The environmental Watchdog, the Office for Environmental Protection (OEP), will hold the Government and other public bodies to account and ensure that environmental laws are complied with.

The key flaw of the 2021 Act however is that environmental targets have not yet been enshrined into UK law. For the moment, we can only speculate how far the government will go to introduce laws to protect our environment.

There is a wealth of scientific evidence that links human welfare and the natural world that strongly suggests the need to create laws for the protection of nature. We depend on thriving ecosystems that clean our water and air, promote pollinators and soak up greenhouse gases. According to the French policy research institute – the Institute for Sustainable Development and International Relations (IDDRI) – land use appears the major driver of biodiversity collapse, with 70% of agriculture related to meat production. The other key factors are the hunting and the direct exploitation of animals, climate change, pollution and invasive species. Climate change is third on the list of offenders but is of course inextricably linked to the protection of the environment.

There are compelling reasons why a healthy environment should even be considered a human right. (c.f. the case of Ella Kissi-Debrah that confirmed that exposure to illegal levels of air pollution in Lewisham, in particular nitrogen dioxide, led to her fatal asthma attack). Some legal scholars have argued that the right to a healthy environment acts as a crucial legal pathway to protect the natural world and therefore human welfare.

According to a global assessment by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) – that examines the simultaneous challenge of protecting nature, maintaining water, feeding the planet, supplying energy, while mitigating climate change – one million animal and plant species are threatened with extinction. To put this into context, this is equivalent to a rate of destruction tens to hundreds of times higher than the average over the past 10 million years.

Since the Stockholm Declaration in 1972 – a result of the first major environmental conference – some 110 countries have constitutionally recognised the right to a healthy environment, including countries such as Costa Rica, Colombia and South Africa. Countries with the right to a healthy environment – or other environmental mandates – in their constitutions tend to have stronger environmental policies in general and more likely to be better at sustainable development. Costa Rica’s constitutional chamber, for example, has ruled that killing endangered green sea turtles is unconstitutional, as well as felling the mountain almond tree, which is used by the critically endangered great green macaw – effectively outlawing both practices.

More countries are considering adopting the right to a healthy environment, either in their constitutions or general legislation, including Algeria, The Gambia, Chile, Canada and Scotland. But some of the world's richest – like the UK, United States, China and Japan – have yet to officially adopt the right. In courts, human rights act like trump cards, generating more powerful legal arguments over other considerations. However, such human rights are not always easy to implement. In South America, deforestation continues and the region is extremely dangerous for environmental activists. Unless people can afford to go to court and feel safe doing so, the right will not be met.

Nonetheless, the right has probably had the most impact in Latin America. Europe has been slower in moving towards adopting the right. This might be because some European countries view the educational part of this right as perhaps more important for achieving more in the longer term rather than litigating for years on end.

In terms of how businesses, including law firms, can translate protection of the environment into their ESG policies, there is a wealth of information available to give you a head start. Firstly, the 2030 Agenda for Sustainable Developments outline the 17 Sustainable Development Goals (SDGs) and includes a guide on how to make SDGs relevant to your business. Compared with Corporate Social Responsibility (CSR), where a business first creates profit then delivers a socially responsible project or event – “the old way” – ESG builds in ethical purpose into policies right from start-up.

Arguably, the greatest influential factor with regards to business change is client behaviour. Organisations can ignore the trend in conscious consumerism at their peril. More and more customers and clients are looking at an organisation’s “moral purpose”. Ethical companies are gaining loyal and satisfied customers and others can lose clients if they are perceived as irresponsible. However, beware of greenwashing! The FCA have recently concluded a consultation on measures to clamp down on greenwashing by regulated firms. In order for your business to be ethical and have a moral purpose that customers and clients seek, you must embark on a journey that is genuine and transparent.

Firms can look at both the financial and moral aspects of sustainability – it need not be a choice between one or the other. In fact, sustainable behaviour could be a win-win for businesses because it cuts energy costs and reduces waste and inefficiencies. The Good Life Goals Business Guide offers practical tips on how to create meaningful practices in the workplace that contribute towards the SDGs, from re-using equipment to choosing fairtrade coffee to switching to LED lights.

Managing the risk of non-alignment with ESG regulations includes being a step (or two) ahead of potential future laws for nature. All levels of employees can contribute to a sustainability plan and there are plenty of resources available to ensure your business heads in the right direction. 

Useful reading:

 The ESG regime: https://esgpro.co.uk/what-are-the-esgregulations-in-the-uk/#:~:text=As%20of%20Summer%20 2022%2C%20the,which%20are%20not%20ESG%2Dfocused.

 Guide for businesses on how to make SDGs relevant: https:// www.wbcsd.org/Archive/Sustainable-Lifestyles/Resources/ The-Good-Life-Goals-Business-Guide

 Sustainability disclosure requirements for regulated firms: https://www.fca.org.uk/publications/consultation-papers/ cp22-20-sustainability-disclosure-requirements-sdrinvestment-labels

 Human right to a healthy environment: https://www.bbc.com/ future/article/20210316-how-the-human-right-to-a-healthyenvironment-helps-nature

 Landmark case on air pollution: https://www.theguardian. com/environment/2020/dec/16/girls-death-contributed-to-byair-pollution-coroner-rules-in-landmark-case

 Sustainable Development Goals (SDGs): https://www.un.org/ sustainabledevelopment/

 Sustainable Business: A One Planet Approach (Jeanrenaud and Gosling – 2016)

 The Ethical Business Book (Sarah Duncan – 2021)

Amanda Lathia

Amanda Lathia

Solicitor, TWM Solicitors LLP