Post-module assignment written for Environmental Law with Dr. Rosalind Malcolm. Spring 2022, Centre for Environment and Sustainability, University of Surrey (MSc)
Grade: 70% (distinction)
As per the feedback of my professor, and for the purpose of avoiding spreading misinformation, there are two important things to note when you read through:
- my analysis of the law is sometimes flawed, e.g. the neighbour principle is part of the tort of negligence, NOT a part of nuisance law
- the paper discusses the proposed Environment Bill, whereas at the time of writing, the bill had already been enacted into law - "Environment Act 2021"
In any case, this paper just about passed with a distinction, but I am still super proud of it and I believe the arguments I presented are worth reflecting on.
1. Introduction
A recent report published by the United Nations Environment Programme (UNEP) suggests that across the globe, the laws pertaining to environmental protection are poorly devised, implemented and enforced (UNEP, 2019). Thus, addressing the issues surrounding environmental law is of critical importance in tackling climate change and ecological breakdown. Increasing evidence emphasises the interdependence between biodiversity loss and climate change, thereby highlighting the centrality of biodiversity protection in curbing environmental crises (Nunez et al., 2019; Pettorelli et al., 2021).
Environmental law is essentially anthropocentric. It provides the framework by which society can function in accordance with overarching economic systems, cultural values, and human morals concerning the benefits of the environment and, by extension, its protection (Bell et al., 2017, p. 704). Rather than being its own cohesive body of laws, environmental law is an amalgamation of several laws and principles across different sectors and disciplines that could potentially fall under environmental protection (Bell et al., 2017, p. 4).
However, the notion that the law works in favour of humans and nature is arguable. Environmental considerations are often taken in the wake of potentially harmful economic repercussions – thus law can be understood as following a homo economicus model, an “unrealistic model” that suggests humans are always rational in their decision-making and therefore in their laws (Laitos & Wolongevicz, 2014). In addition, Fisher (2017) suggests that “the rise of neo-liberal thinking” and “globalization” are major drivers of environmental degradation in order to grow the global economy (p. 47). Academics across the globe hold similar views, especially with regards to privatisation and endless economic growth (Felli, 2015; Flynn & Hacking, 2018; Stafford & Jones, 2021; Torres; 2015). Needless to say, there is a symbiotic relationship between humans and nature – they are interdependent. Broadly speaking, society can only function as long as nature can continue to provide its ecosystem services. This begs the question: are the homo economicus and neoliberal models of valuing nature fit for the purpose of protecting the environment through law?
In the United Kingdom (UK), biodiversity is in crisis, and ultimately, the efforts made to conserve the country’s wildlife and habitats have been inefficient and inadequate (House of Commons Environmental Audit Committee (EAC), 2021). The complex legislative web of statutes, regulations, guidance, international agreements, and other legal instruments governs the way in which the UK manages its wildlife and habitats. The UK has formulated and adapted to a plethora of dedicated environmental laws and regulations and is signatory to several international treaties and conventions. Due to the devolvement of administrations in the UK, the focus of this essay is mostly within the context of the legislation in England, but the abbreviation “UK” is used throughout.
Through the lens of environmental law and with the use of exemplary case studies, this essay critically discusses how UK law is used to deal with environmental harm with a focus on the protection and conservation of its wildlife and habitats (i.e. biodiversity). In doing so, this essay seeks to:
• unravel the shortcomings and opportunities of the existing UK legal framework in achieving its purpose regarding environment protection, and
• reflect on the principles and values behind environmental law to create a more ameliorative relationship between humans and nature.
2. UK Common Law and Regulatory Law
The health of our ecosystems depends on all laws concerning the environment – of air and water quality, waste management, and urban developments. This makes it difficult to isolate biodiversity as a separate issue given that anthropocentric activities inevitably affect our wild nature regardless (Bell et al., p. 704). Yet, like with all aspects of the environment, the UK developed its own bodies of legislation that are more specific to the protection and conservation of its biodiversity. With this in mind, Section 2 deals with how UK common law and regulatory law address biodiversity and ecological protection. Furthermore, the aforementioned ‘principles’ that dictate these laws are considered.
2.1. Common Law in the UK
Most environmental laws were born out of common law and case law (judicial precedent), whereas statutory law, which is what currently dominates, was developed more recently (Bell et al., 2017, p. 356). Private nuisance, which falls under common law, “requires that one landowner will not unreasonably interfere with another’s use or enjoyment of their land” (Fisher, 2017, p. 54). This constitutes the ‘neighbour principle.’ In this sense, private nuisance may showcase how eligible claimants and defendants in relevant civil cases may work to the benefit of the environment by avoiding or mitigating ‘property damage’. Thus, the precautionary and proximity principles are also applicable.
However, from an environmental context, the anthropocentric nature of private civil law means that private nuisance is applicable to people who are directly affected by environmental damage, rather than the focus being on the damage done to the environment, regardless of any of the societal or economic implications. Furthermore, the neoliberal conceptualisation of private property rights is central to the issues surrounding the protection and management of private land and therefore the wildlife and habitats that exist within its boundaries (see Chapter 19, Bell et al., 2017).
In the UK, Sites of Special Scientific Interest (SSSIs) are statutory designated sites of ecological and/or geological significance in England under the Wildlife and Countryside Act (WCA) (1981). Natural England are the non-departmental public body created by the WCA (198) and are tasked with notifying SSSIs. Many SSSIs are privately owned by one or more individuals whom Natural England are required to provide extensive guidance for their management (Natural England, 2022). Importantly, SSSIs were chosen as ‘representative’ (as opposed to a comprehensive) suite of habitats and wildlife that should be protected and/or positively managed beyond designated sites (Department for Environment, Food and Rural Affairs (Defra), 2006, p. 4). This led to the government effort to create Local Sites (LS). These are non-statutory designated sites that share the same qualities as SSSIs and can form ecological connectivity with them (Defra, 2006). Though non-statutory, the Natural Environment and Rural Communities Act (NERC) (2006) section 40 states “the public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.” Therefore, the responsibility for their positive management to maintain their status as LS falls on local authorities.
Despite this, the land that constitute LS are often privately owned and given their non-statutory status, the power of local authorities is limited. The recent case regarding the purchasing of Pewley Down Meadows in Guildford, Surrey, exemplifies the complexity of private landownership and environmental protection. In 2021, a group of environmentally conscious Surrey residents found that an extensive piece of land in the Pewley Down LS was being auctioned off (Environmental Law Foundation, 2021). This area of chalk grassland houses essential species of regional and local biodiversity importance and is part of an Area of Outstanding Natural Beauty (AONB) (Environmental Law Foundation, 2021). AONBs are designated sites protected by the Countryside and Rights of Way Act (CROWA) 2000. Competing against a corporation that sought to purchase the land for developments, the local residents formed a campaign, raised an impressive £1million in three weeks, and successfully purchased the land (SWT, n.d.). Notably, this required joint efforts and contributions from the Surrey Wildlife Trust (SWT) and a local celebrity (SWT, 2021). Now private property, the landowners were able to grant a 500-year lease to SWT for the area’s protection and positive management of its biodiversity (SWT, 2021). This is an obvious ‘win’ for local biodiversity, yet, as Bell et al. (2017) puts it, “the regime remains largely based on voluntary negotiations” (p. 722).
Protection of wildlife on local scales is significant in curtailing biodiversity loss. The famous Making Space for Nature report concludes that combating ecological deterioration requires that the habitats that the UK protect must be “bigger, better, and more joined up” (Lawton et al., 2010). While the report emphasises that “strong leadership from the government” is needed to achieve this, Defra’s SSSI management guidance advocates “constructive dialogue and partnership” between private landowners and authoritative figures (Bell et al., 2017, p. 713; Lawton et al., 2010, p. v). Thus, voluntarism, which may take the form of philanthropy, charity, or campaigning of regular citizens, plays a larger role for environmental protection under a neoliberal regime more-so than statutory laws. This suggests that, given the lack of statutory enforcement, the onus of environmental protection lies in the hands of a very niche group of civil society. Evidenced by the state of UK’s declining biodiversity, neither private ownership nor statutory protection appear to be sufficient nor reliable in protecting the country’s biodiversity. This relates back to the anthropocentric nature of environmental law – if voluntarism is deemed essential to protecting land via acquisition and private ownership, could this imply that the country has failed in developing the foundational principles to protect the environment? Fisher (2017) states, “for good or ill, political and legal imagination is the product of political communities that cluster into nation states” (p. 67). In other words, the nature of environmental law is shaped by political and societal values within a given nation state.
To conclude, private ownership of land can be detrimental to habitats and species if landowners are not responsibly managing their land, hence the development of regulatory and administrative laws. Although the UK has designated sites that are under protection by national law, EU law, or international law, planning permissions for developments that are deemed economically beneficial to society can override incentives to protect the environment. Under neoliberalism, the pursuit of economic growth, deemed as beneficial for society, can outweigh wider environmental concerns. This is discussed further in the following sections.
2.2. UK Regulatory Law
To combat the implications of private property and individual rights versus the powers of the public authorities, the UK government developed key statutes (acts), some of which were introduced in the previous section. In addition, there are the Town and Country Planning Act (1990), National Parks and Access to the Countryside Act (1949), and Regulatory Enforcement and Sanctions Act 2008. To summarise, the range of statutory instruments designed to protect the UK’s wildlife and habitats include (but are not limited to):
• Countryside and Rights of Way Act (CROWA) (2000)
• Natural Environment and Rural Communities Act (NERC) (2006)
• National Parks and Access to the Countryside Act (1949)
• Town and Country Planning Act (1990)
• Town and Country Planning (Environmental Impact Assessment) Regulations (TCPR) (2017)
• Regulatory Enforcement and Sanctions Act 2008.
• Wildlife and Countryside Act (WCA) (1981)
The main designated sites that are statutorily protected in the UK are SSSIs and National Nature Reserves (NNR) the latter of which are protected under National Parks and Access to the Countryside Act (1949). However, a study conducted by the Royal Society for the Protection of Birds (RSPB) found that despite 28% of UK’s nature being protected, “as little as 5% may be effectively protected” (Starnes et al., 2021). Furthermore, the study suggests that the designated sites do not meet the criteria, put forth by the International Union for Conservation of Nature (IUCN), to be considered in ‘good’ environmental condition (Starnes et al., 2021). This has global implications on the integrity of the UK government as the study reveals that the government’s report to CBD on progress towards delivering the Aichi Biodiversity Targets was in fact wrong and misleading (Starnes et al., 2021).
On a separate note, Natural England reported that 53% of SSSIs are in unfavourable recovering condition compared to 38.4% being in favourable condition, with 5.1% in unfavourable no change condition (Natural England, 2021). These statistics imply that not even statutory designations are sufficient in protecting the country’s biodiversity. Thus, the power and effectiveness of the state in mitigating environmental harm and biodiversity loss is still questionable. To demonstrate this, the case of Buglife v. Thurrock Thames Gateway Development Corporation (TTGDC) (2009) is discussed. In this case, the precautionary principle is a significant driver for both parties in justifying their actions.
The conservation charity, Buglife, initiated a judicial review to challenge TTGDC’s decision to grant planning permissions for developments that would be detrimental to the rare and endangered invertebrate populations in the ecologically important West Thurrock Marshes. Furthermore, an SSSI is adjacent to the site. The charity’s judicial review application was dismissed in 2008 and the subsequent appeal against this decision was ultimately dismissed in 2009 as well. Buglife’s legal team (the appellants) used a number of statutory instruments to challenge the decisions made by TTGDC (respondents) including:
• Section 41 (3) of NERC (2006)
• Town and Country Planning Act (1990)
• UK Biodiversity Action Plan (UK BAP), which was the government’s response to the Convention on Biological Diversity (CBD) of which UK is signatory, and
• The Local Government, Planning & Land Act (1980)
In addition, the appellants relied heavily on judicial precedent, citing previous cases where planning permissions were dependent on enforcing the above as well as conducting environmental impact assessments and developing environmentally sound mitigation measures. Importantly, not only did Natural England serve as expert consultants for the court, but they were also involved in approving the planning permission for the developments after negotiations with the developer as per the requirements of NERC (2006). Thus, Natural England did not necessarily agree with the appellants appeals, which brings to light the contrasting views of the state’s approach compared to charitable organisations that are dedicated to environmental protection. An important conclusion by the court is stated as follows:
the obvious advantages of the application site for a distribution depot in the context of a planning application in an urban development area, taken together with the limited adverse effects, as assessed, including on the conservation of biodiversity, the opportunities for mitigation and the positive benefits for the environment, render the respondents' approach appropriate and lawful. (Buglife v. TTDGC 2009)
While Buglife heavily relied on the precautionary principle to halt development and prevent the potential negative impacts on the rare and endangered invertebrate species and their habitat, TTDGC assert their own precautionary approach through their plans for mitigation, monitoring, and restorative measures of the area. Still, Buglife regard this court decision as a major loss for the UK’s biodiversity as the planning permission for development on the habitat remained. Thus, it is unclear whether the precautionary principle can work in favour of the environment or economic development, or both. Perhaps principles on their own may not particularly favour one outcome over another – rather, it is the personal interests of the entity that uses such principles that determines a desired outcome.
According to the Thurrock Council’s (2007) biodiversity study, the area of Thurrock is a “key growth area” and “under pressure for development” yet also emphasises the vulnerability of its invertebrate populations due to its unique habitats. This demonstrates the growing concerns of the capitalist notion of infinite economic growth (Jackson, 2011; Moore, 2015), and more importantly, the viability of the neoliberal concept of sustainable development (Kotze & French, 2018). The case of Buglife vs TTGDC (2009), though over a decade old, is still relevant as the existing legal framework has not changed. Additionally, the outcome of this judicial review imposed a capped cost of £10000 on Buglife, who had hoped that this could be recovered “if it succeeded on the substantive claim for judicial review” (Buglife v. TTGDC 2009). On the other hand, TTGDC complained that, as a public body funded by taxes, if it had lost it would have to pay an undisclosed amount significantly greater than the cap imposed on Buglife (Buglife v. TTGDC 2009). The issue of high costs adds further complications and may even be a deterrent to pursuing legal action for interested parties. This case highlights a need for determining appropriate allocation of monetary funds, be it to public or private bodies, specifically for environmental protection.
Nevertheless, judicial review allows people to challenge decisions made by public bodies. This provides major opportunity for legal reform as it can form judicial precedent and provide incentive for the government to reform statutory law towards more stringent environmental protection. To reflect this opportunity, the Environment Bill 2020 is currently being proposed for a post-Brexit UK (Defra, 2022). Part of the bill is the introduction of ‘conservation covenants’ which are
voluntary but legally binding agreements between a landowner and a designated ‘responsible body’ such as a conservation charity, public body, or for-profit body to conserve the natural or heritage features of the land (Defra, 2022).
This presents major opportunity to improve current legal tools in the UK. With such conservation covenants, “the duty will be owed not to a private neighbouring landowner, but to a state body or a body otherwise charged with the protection of natural interests” (Bell et al., 2017, p. 746). Another notable goal of the Bill is embedding five “environmental principles”, which were previously a part of EU law of which the UK was bound. These are: the integration principle, prevention principle, precautionary principle, rectification at source principle and polluter pays principle (Defra, 2022).
Still, in my view, the potential for legal reforms remains hindered due to the tensions between the government’s perceived benefits of economic development versus the necessity to protect and conserve biodiversity for overall societal wellbeing. Significant drivers to biodiversity loss in the UK include a lack of expertise, funding, and legally binding environmental targets (EAC, 2021). In addition to this, my view is that the environmental legal tools in place may not be necessarily lacking – rather, it is the drive and ambition of the elected government in prioritising environmental protection using the existing legal framework.
3. Influences of EU Law in the UK
Biodiversity loss is a global crisis. So far, the main focus has been on the UK’s domestic laws and how it has been used to address biodiversity loss in the country. However, EU law remains influential in the country’s legal framework. The vast majority of EU law remains a part of the UK’s legal system post-Brexit, dubbed “EU-retained law.”
Indeed, a healthy planet in a globalised world is an ecologically interconnected one. The impacts of biodiversity loss in one region can have far-reaching consequences on biodiversity (and society) elsewhere. Therefore, Section 3 explores how EU law may influence UK’s approach to biodiversity protection by using the Lappel Bank case study. This section will conclude with reflections on the global neoliberal regime’s influence on how we value biodiversity.
3.1. EU Law and the UK – The Lappel Bank Case
Localised protection of biodiversity, especially of habitats, does not only benefit immediate wildlife. This is especially true for migratory birds that rely on habitats scattered across Europe. Thus, the EU created directives for the conservation of birds and habitats. These are applicable to all Member States and remain relevant to the UK both historically and due to EU-retained law. As shown in Section 2, neoliberal values of private property and economic growth have created a domestic legal framework that has been used to the detriment of biodiversity protection in the UK. The Lappel Bank case is discussed to showcase how EU law has been used to address threatened biodiversity within the region (R v. Secretary of State for the Environment (SoS), ex parte: Royal Society for the Protection of Birds (RSPB) 1997).
The two EU Directives that are applicable to this case and continue to have major influence in post-Brexit UK are as follows:
• Directive 2009/147/EC on the Conservation of Wild Birds (Wild Birds Directive)
• Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (Wild Habitats Directive)
Articles 1, 2, and 3 of the Wild Birds Directive, Member States must take measures to maintain sufficient diversity of habitats for all European bird species (Birds Directive 2009/147). Specifically, article 4 of the Birds Directive details that Member States are to “classify in particular territories in number and size as special protection areas (SPA) for the conservation of these species” and “shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance” (Birds Directive 2009/147). Lappel Bank was an area of inter-tidal mudflat adjacent to the Medway Estuary and Marshes SPA. Despite its ecological significance for a variety of bird species, some of which are listed in Annex I of the Wild Birds Directive, a planning permission was granted by SoS to develop the area into a car and cargo park.
In 1996, The RSPB initiated a judicial review to quash the SoS’s decision to permit developments on Lappel Bank despite it meeting the criteria for a SPA, due to the local and national economy outweighing its nature conservation value. Once again, this highlights the UK government’s prioritisation for economic growth over environmental protection. Although the European Court of Justice’s (ECJ) ultimate decision was that the UK government acted unlawfully and in opposition to the EU Birds and Habitats Directives, the House of Lords allowed the development to proceed in the interim of the judicial review process.
In contrast to the Buglife v TTGDC (2009) case, the ECJ has shown to be more effective than the UK’s statutory bodies at situating accountability and litigation measures against actions that have threatened local and regional biodiversity. Yet, as a result of UK’s neoliberal endeavors, this habitat is now lost and the bird biodiversity across Europe – not just in the UK – have been put at risk. This strengthens the argument that historically, the UK government has been inadequate at abiding by and enforcing their own environmental regulatory laws and, further to this, use discrepancies in the written law as opportunities to pursue economic growth at the expense of biodiversity conservation.
Ultimately, this raises an important question regarding how the UK values nature. As put by Buxton (1995), there is “something in the judicial psyche that cannot conceive of nature being superior to economic interests.”
Conclusion
This essay has explored how neoliberalism encroached upon the guiding principles of environmental law in the UK. Regarding this, the main arguments I presented here are as follows:
• Private property complicates the protection of the environment as it relies on a homo economicus model of rational decision-making.
• The social benefit of economic growth outweighs the benefits of protecting biodiversity (and the natural environment in general).
• Due to these two factors governing environmental law, legislative bodies use neoliberal doctrines in private property and economic growth as guiding principles.
On the contrary, judicial precedent and the introduction of conservation covenants into environmental law provide opportunities for legal reform wherein the state may be able to exercise more power. In my view, the written regulatory instruments reviewed for this essay encompass adequate provisions that, if actually implemented and exercised by the relevant bodies, would achieve their purpose in protecting biodiversity.
This essay is limited to just three exemplary case studies involving private property rights and pursuits for economic development, so a more thorough review of cases is desirable to strengthen the arguments presented. Regarding the cases discussed, another important aspect to consider in judicial reviews is the effect of the lengthy bureaucratic process while courts reach a decision. The cases presented took years before reaching a conclusion and, in with the Lappel Bank case specifically, this was indeed a major factor in the proposed development in the area proceeding.
Furthermore, a few important concepts that were introduced are worth reflecting on. For example, the homo economicus model, as previously mentioned, has been incorporated into the UK’s environmental legal framework wherein there is a presumption that landowners will make rational decisions. However, what constitutes ‘rational’ decisions? Depending on the individual’s perspective, be it from an economic, environmental, or some other position, decisions will vary. Hence, foundational principles regarding the law, the environment and societal wellbeing are interrelated. Other concepts that can be explored further are the roles ecosystem services and sustainable development can play in determining such human values and well-being that work for the benefit of humans together with nature. Finally, the critique presented is focused on neoliberalism which encompass social, economic, and political theory. Thus, developing solutions to tackle the issues at hand regarding environmental law will require exploring alternative theories and their viability.
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Barkat.S 