Climate change is the greatest existential crisis we face today. Unless urgent action is taken, it will devastate future generations and transform life on our planet. As lawyers and human beings, we have a responsibility to help preserve our planet and help our clients do the same by helping them navigate the law.
Indeed, the recent – and much-appreciated – Law Society resolution urges lawyers to, “Engage in climate-conscious legal practice by…addressing any issues that arise in the course of legal practice regarding the likely impact of that issue on the climate crisis.”
Conserving biodiversity has long been neglected in efforts to combat climate change, but, as a recent landmark study of the Zoological Society of London, addressing the global climate change and biodiversity crises separately is counterproductive and could even make the problem worse. Life on our planet is already disappearing, with 15 plants and animals declared extinct or extinct in the wild in 2020, while the International Union for Conservation of Nature Red List of Threatened Specieswhich assesses the threat level for more than 138,300 species of animals, plants and fungi currently in its database, warns that more than 38,500 species are at risk of extinction.
Clearly, environmental law will not on its own solve the UK’s contribution to the climate and biodiversity crisis, but the law introduces some extremely welcome measures to help lawyers in their efforts to use the law to protect our planet.
Dealing with the global climate change and biodiversity crises separately is counterproductive and could even make the problem worse.
“Green” supply chains
The environmental credentials of a company’s supply chain will already be of concern to any company that cares about sustainability and environmental preservation from a reputational perspective. However, the Environmental Act goes further, increasing due diligence requirements for companies to “green” their supply chains, including the requirement to establish a system to identify, assess and mitigate the risk that illegally produced forest products enter their supply chains.
Lawyers can help companies meet the new requirements by drafting their due diligence policies, as well as working with the client to help them “green” supplier contracts. To protect customers and their reputation, “green clauses” can require net zero standards for suppliers, helping customers achieve their own net zero goals by reducing their scope 3 emissions. They can use models based on incentives in agreements to ensure sustainability goals are met and maintained or use late payment mechanisms to support green causes or offsets. There are also opportunities to introduce green execution protocols, which lawyers and their clients can collectively agree to in-head terms at the start of an execution, minimizing the carbon footprint of executing transactions.
Lawyers can make contracts and processes green in multiple ways, working with their clients to ensure their business partners are aligned with environmental goals.
Leave a lasting legacy
The Government’s landmark Environment Bill introduced legislation for Conservation Agreements, proving that there is growing recognition of the importance of protecting the environment, wildlife and habitats.
Conservation agreements allow a landowner to enter into a voluntary, but legally binding contract with a responsible body, such as a charity or local authority, to conserve wildlife, habitat or heritage assets. Conservation covenants, binding agreements with remedies for breach, including specific performance, damages and injunctions, are a tool through which landowners can leave a lasting legacy and create ecological benefits for generations. future.
Whether the obligation is to preserve an old growth forest or to require a net biodiversity gain, it will be registered with the Land Registry as a local land charge – that is, if a subsequent owner’s actions circumvent the terms of the original agreement while the obligation is still in effect. binding, they can be prosecuted even 150 years later.
If landowners can be encouraged to support conservation commitments, they can be a key asset in preserving biodiversity. Lawyers may need to educate their clients about new legislation and how conservation agreements can help clients achieve their environmental goals and wishes.
New requirements for local authorities
The law also extends certain protections for the natural environment, including requiring local road authorities to consult with communities before cutting down street trees (unless the trees have certain exemptions, as may be the case of trees infected by ash dieback).
Consultation must be in accordance with established principles and take into account any guidance issued by the relevant Secretary of State for this purpose, including that local authorities must provide sufficient information to give “intelligent consideration” – meaning that consultations must be available, accessible and easily understood. so that those consulted can provide an informed response.
Law firms can provide advice to local authorities to ensure they act in accordance with new and established principles, as well as assisting their clients with essential record keeping and audits of decisions made. Lawyers will also be able to assist local authorities in the development of “tree felling” policies, consultation and internal governance. For local authority clients, documenting the decision-making and actions taken will prove essential in defending any dispute that consultation should have been undertaken in a given case.
Local authorities may also need to consider how tree cutting fits into an environmentally sound agenda and ‘green’ decision-making, alongside any sustainability or climate mitigation commitments. climate change. Tree-cutting – even when justified – can have greater implications for the reputation of a local authority client, now that the law can increase control over the decisions made, particularly for local authorities who have declared a “climate emergency”. Lawyers can of course help protect the client’s reputation in the event of a dispute.
The felling of trees – even when justified – can have wider implications for the reputation of a client local authority.
Increase net biodiversity gain
Parts of the Environment Act have potentially huge implications for developers, including Schedule 14, which makes a 10% biodiversity gain a condition of planning permission in England.
Coupled with the application of net biodiversity gain requirements to nationally significant infrastructure projects, such as major transportation developments (like HS2), the law should put pressure on developers to become more aware of the environment and consider developments and actions according to the way in which they affect the biodiversity of a territory.
An example of this was seen last year, when the HS2 infrastructure project was criticized for felling a 300-year-old tree near Leamington Spa with the justification that they were planting replacement trees and shrubs. The quality of the HS2 replanting program has also been criticized, with a Claim that many young trees had died because they had not been planted correctly.
Lawyers can assist developers by helping them navigate new laws, assess any biodiversity net gain plans to ensure they fit within the legislation outlined in the Environment Act, and avoid a box-ticking exercise that can attract criticism and scrutiny without fulfilling any obligation to preserve the environment.
While it is clear that progress is being made, the Environment Act and other measures, including the recent establishment of the Office for Environmental Protection (OEP), will not be enough to mitigate the climate emergency.
The OEP, which was set up to provide independent oversight of the government’s environmental progress, has been criticized for its limited role and powers. Although the organization receives and validates complaints relating to public authorities, it will not make any final decision. The Environment Act has also come under criticism for certain omissions, such as how net biodiversity gains will be measured, which means challenges could arise for legal professionals trying to hold them accountable. to developers.
Environmental law and other measures…will not be enough to alleviate the climate emergency.
Nevertheless, the Environment Act is certainly a step in the right direction and should greatly assist lawyers in helping their clients protect our environment, as well as hold accountable those who cause harm.
Natalie Barbosa, Senior Partner
76 King Street, Manchester, M2 4NH, United Kingdom
Tel: +44 0161 470 0312
Email: [email protected]
Nathalie Barbosa provides advice to charities and health and social care organisations, with a focus on fundraising regulation and advice, commercial/contractual partnerships and green projects. She also helps lead the work of Anthony Collins Solicitors in the green sector, helping clients achieve their sustainability goals, greening their procurement processes and working to improve biodiversity. She leads Anthony Collins Solicitors’ involvement in The Chancery Lane Project, a collaborative effort of UK lawyers using law and contract terms to tackle the climate and ecological crisis.
Anthony Collins Lawyers is a specialized law firm focused on improving lives, communities and society. In the 45 years since its inception, the firm has pursued its social purpose by working with clients in a variety of sectors, including health and social care, education, housing, local government and social enterprises. Anthony Collins Solicitors was also recognized as one of the top five national charity firms.