In a previous post, John McEldowney explained the genesis of RoN scholarship. He now explains the state of the reflection in the UK context.
The UK and the State of Nature
The UK has been path-breaking in introducing the Climate Change Act 2008, the first legally binding emission targets and mitigation strategy. The aim was to reduce greenhouse gas emissions by 80% by 2050, set carbon budgeting and establish a Climate Change and National Adaptation Programme with a Committee on Climate Change to oversee progress. Thereafter the UK has tended to look on at other countries assuming that its own approach would be sustainable and also successful. The reality is proving to be disappointing and the Climate Change Act has failed to reach its full potential. It is doubtful that it ever will!
The UK government’s advisory committee, the Joint Nature Conservation Committee, provides an annual report monitoring the state of nature in the UK. The latest report, dated December 2022, provides a snapshot of the UK environment and the impact of land use and climate change. In assessing measures connected with nature, 33% of measures assessed showed a long-term decline and 33% showed a decline in the short term. Mainly the decline fell within the safeguarding of ecosystems and genetic diversity. Particularly alarming are birds and wildlife, biodiversity and protected areas of land. There was some better news with some areas showing 50% of measures with a long-term improvement and 36% an improvement over the short term. The UK’s, Climate Change Committee, in its 2023 progress report to Parliament commented that following the Second National Adaptation Programme the UK was still not adequately prepared for climate change.
However, there are some encouraging signs. The UK is a diverse economy with high population density and an increasing awareness of biodiversity and an increasing interest in nature conservation. The National Trust, a charity that manages many estates and green areas is a significant custodian of the green environment. Organisations such as the Royal Society for the Protection of Birds and the Wildlife Trust attract enormous public support. Public Health England, now the Health Security Agency, notes the general good for health and mental illness through the provision of nature and green space. On contentious issues there are debates about clean air, pollution of marine habitats and inland lakes and waterways. Pollution of bathing areas and estuaries is another cause of concern. Access to land and the right to roam in England, Wales and Scotland are increasingly becoming issues for public debate. A Private Member’s Bill, the Countryside and Rights of Way Act 2000 (Amendment) Bill 2023, is being debated in Parliament and is a good example of current political debate. More generally, access to the countryside is seen as an important aspect of public life. The current government is actively engaged in protecting and strengthening the landscape to support public welfare. Protecting nature is likely to be a contested question globally but may be supported through some form of right of nature. Currently, the UK’s policy approach is sceptical of human rights protections, but this may not always be the case. Future governments may take a different attitude to environmental rights than the current government.
RoN and the United Kingdom
Already, Brexit has shown itself to result in unforeseen and perhaps unintended results. First the UK has left the legal system linked to the legal family of European Member States. This creates many new challenges, not least that of no longer following EU law. The UK has become an outlier from EU policy making and no longer a direct participant in EU decision-making. This puts the UK in the position of no longer being an influencer in European decision-making.
In particular, the current UK government remains entirely sceptical of the Strasbourg European Court of Human Rights and the European Convention on Human Rights. Trade with the EU is considerably more difficult than when the UK was a member of the EU. There is also a considerable and growing gap between the expectations of leaving the EU with the actual reality of economic life. Alan Boyle has noted how environmental protection is often missing from the literature on human rights, despite the link between the environment, the impact on life, health, private life and property. Rights also help promote the rule of law, the accountability of government and the oversight of corporations, as well as the regulatory system. There is an impression that human rights and the environment is very much the activity of environmentalists rather than the mainstream. In contrast judicial approaches to the environment and human rights are often more interrelated and co-ordinated.
The UK’s common law tradition has been strongly resistant and sceptical of any imposed rights-centred focus. Rights are not seen as automatic or indeed even desirable, when their potential to challenges accepted UK traditions. There is a view that rights are an impediment to economic growth – which is, of course, highly debatable. The central focus of the UK’s constitution is not to be found in a written constitution but in the sovereignty of Parliament. An objection to a rights-based approach is that rights might bind Parliament, meaning politicians, or at any rate impede legislation that is politically popular for the government of the day. The absence of a rights- based approach in the UK, is clearly a limit on the potential of RoN to fully develop in the UK.
Generally, UK courts have shown a marked reluctance to expand judicial review to prioritise climate change claims. This reluctance is evidenced in cases taken by various NGOs and activist groups that have resulted in dismissal of applications. There are some exceptions such as R (Client Earth) v Secretary of State for the Environment Food and Rural Affairs which questioned the government’s compliance with legislation under the Air Quality Directive and led the Supreme Court to require that the government should take action to meet its responsibilities. The case was before Brexit, However, the general reluctance to expand judicial review to meet climate change may reflect the state of current legislation. Perhaps the courts are worried that such cases are too political in nature and may raise issues about the merits of government policy, traditionally regarded by judges as falling within matters best suited for Parliament and not for the courts. There are also financial constraints on individuals and groups from bringing legal challenges in England and Wales. Fears about costs are based on recent rule changes that allow defendants and interested parties to apply to increase the default caps on costs in environmental cases. Client Earth has noted how a default cap was raised from £10,000 to £25,000 in some recent cases. Cases that challenge whether the government has breached the Climate Act are particularly politically sensitive. It is argued that the UK has breached the Aarhus Convention as legal action has become prohibitively expensive. It remains to be seen what the approach of future governments will be to such issues.
A further impediment to RoN in the UK is that the UK government has embarked on a general deregulation approach. This is claimed to make it easier to create economic growth and attract investments from abroad. Deregulation is a serious threat to the central question of how to make environmental law and regulation efficient and enforceable.
The absence of EU law as part of the UK leaves a further problem. Creating principles of environmental law is made very much more challenging when there is a resistance to codified law and generalisable principles. In the UK this is a further obstacle to any development of a sustainable set of principles environmental law and raising RoN strategies.
Finally, the UK system is designed around the overarching superiority of Parliament including the unreviewable status given to UK sovereignty that makes legislation immune from legality challenges. This means that UK judicial scrutiny and review is less pro-active than a legal system with a constitutional court that has power to review the legality of legislation. It is very unlikely that attitudes to rights will change some time soon.
Overall is RoN likely to have an impact on improving the environment?
RoN draws on a wide spectrum of opinion. It has migrated from being a single issue cause into a larger and more inclusive philosophical and intellectual movement, underlined by diverse and often contradictory opinions. The fact that RoN Diverse opinions within RoN that operates under a very broad umbrella of ideas about the environment, provide one of its attractions. RoN is now found in general discussions about environmental law, providing different priorities and understandings. The politics of the day, also influence how RoN is defined. In most Western societies the attraction of RoN ebbs and flows, reflecting the width of the movement and the vagueness of the causes that adopts RoN for its supporters.
RoN is actively used and adopted by indigenous communities and is a means to mitigate and limit harmful environmental activities. There is a sense that RoN may ascend the hierarchy of decision-making about environmental issues. There is also a remarkable political naivety about RoN that it may overwhelm and dominate environmental discourse. In countries with a written constitution, there is a belief that constitutional change or reform should encompass RoN. This would secure RoN a status and protection that would be a life changer.
Devotees are secure in the belief and hopes that RoN might eventually become successful and an effective tool for the future. Global concerns about climate change and sea-level change as a consequence of global warming show heightened anxiety about the future. However, RoN is premised on the assumption that timely judicial interventions will help secure better legally binding protection of the environment than other means, even legislation or political policy making. Although the role of permissive environmental legislation allowing greater environmental protection is not fully acknowledged in all RoN thinking.
The protection of the environment is complex. The needs of the environment and the needs of people can be contradictory. Farming, which is necessary for food products, methane and other greenhouse gases and other environmental impacts may harm the environment. Enthusiasts of RoN are clear that its potential may change approaches to the environment and result in real improvements.
Distinguishing between procedural and substantive approaches within the concept provides a good way to assess its potential contribution. The constitutional framework can be established by identifying gaps in existing protection through an analysis of the various Treaties of the European Union as a means of identifying gaps in the existing framework. Sustainable development, the integration of various elements of environmental protection are all possible through a more robust set of constitutional protections.
Member States might be prevented from undertaking measures that may degrade the environment or weaken EU law. This is an ambition that is likely to become a politically complicated debate between Member States when operating at different levels of acceptance of environmental protection. This may complicate the future development of environmental law in every Member State. There are other ideas around this basic underlying principle of Member States of taking steps to clean up pollution or mitigate any pollution. Such general ambition may not suit the different experience of environmental protection in different Member States.
RoN faces questions about how enforcement is undertaken and how effective this may be in reducing climate change and ensuring that environmental protection is enhanced. Financial resources are also relevant and essential to ensure the environment is protected. It is unclear how RoN will provide either the political will or the necessary financial arrangements. Despite the enthusiasm of its proponents, it is clear that RoN is not so much a revolutionary movement or radical alternative, rather the integration of existing diverse approaches and ideas to advance the cause of environmental protection. One approach is to see RoN as a stewardship principle overseeing nature’s resources and acting as a custodian of the world. This may seem over theoretical and not offering a practical approach to resolving environmental problems.
Evaluating the contribution of RoN to environmental law is challenging. This is because RoN is often poorly defined and lacking in clarity as to its meaning and practical effect. It is hard to be sure of the causal link between RoN and various strategies to create litigation to offset environmental harms. Perhaps this is an inevitability of an approach that may influence the mainstream of rights- based litigation without a perceptible trace. Too often RoN is supported by anecdotal analysis, and at times the evidence of success may appear to be contradictory with widely ranging interpretations. That said, RoN provides highly aspirational visions of the future and some promising opportunities. Enthusiasm and dreams of a better world are interwoven in a value-driven set of aspirational ideals. None of this should be underrated in terms of what it may achieve, or the inspiration it may offer, to pursue the protection of the environment through court challenges and legal action. Technical and scientific evidence is one of the most challenging aspects of environmental law and RoN may help integrate science in useful ways.
Perhaps the most significant is the ability of RoN to encourage interaction between the disciplines of law and science. Defining human rights to include the environment offers a promising narrative upon which to build a new way of presenting the environment that may take protecting the environment to a new level.
Legal scholarship is made all the richer by incorporating RoN. However, the UK gives particular attention to democratic mandates, even if this may run contrary to judicial challenges. Thus the acceptance of RoN strategies may not be easy to reconcile with strongly parliamentary based systems of government.
Supporters adopt different strands of the RoN movement. This brings inconsistency in core values that may make it impossible to assess what success may mean. Thus there is no single moment when success might be declared or even agreed. It is a general principle of non-regression that recognises the intrinsic values of biodiversity, and nature. The implications of climate change litigation should not be underestimated in terms of the economic consequences and the implications for policy-making and policy-makers.
At present there is no enforceable form of agreement that will apply to all Member States. RoN is highly dependent on economics and sustainability, both vulnerable to uncertainty in the face of unexpected events such as pandemics, such as Covid, and wars, such as Ukraine.