In this Centre for Climate Engagement’s spotlight interview series, we explore law for climate action through the lens of a range of experts in their fields. This month, Dr Emily Webster (†), Assistant Professor in Environmental Law at the Department of Land Economy, University of Cambridge, reflects on the role and reform of private law in response to climate change.
When and why did you become interested in climate change?
My interest in the environment and climate change began at quite a young age. My family were aware of the problems related to climate change and I think that imbued me with an interest in the topic. We lived in the countryside and my parents were members of Friends of the Earth, mindful of the local environment, and encouraged my brother and I to be interested in nature and the natural environment. I was born in the 1980s, when the environment was changing. The degradation was visible, problems were emerging, and environments were being stretched. I think it was being able to see things happening that made me a little bit more sensitive to these issues.
I knew I wanted to practise law, but it wasn’t until I studied environmental law as an undergraduate that my interest in this specific area and the coupling between law and environmental issues became something I was interested in pursuing further. I chose not to go into practice, but to continue on the path of environmental and climate change law. Following my undergraduate study, I completed my Master’s at King’s College London where I pursued climate change law and climate change governance as part of my legal and academic research. This led to the questions underpinning my doctoral research which considered how companies at the forefront of environmental degradation and climate change deal with the complexity of the law, regulation and policy that attempts to regulate their activities and limit the associated harm caused to the environment, either directly or indirectly. How do these companies navigate this sphere, and importantly, how do we design an effective framework that helps companies do better, creating the certainty that businesses need and offering a straightforward approach to regulating these entities.
Can you describe what you do now?
My current work spans a number of areas. The first is evaluating company law, because I am interested to understand how the law is being used and put under pressure by climate change and biodiversity – particularly where there are barriers to connecting humans and the environment, and connecting companies in the environment as well, because I think they are parallel issues. This is with a view to identifying where the law and reform can help to support better outcomes and where we might need to intervene with additional regulation – and what that might be.
The second part brings focus to the transnational level and how legal norms being developed for climate change and biodiversity are emerging, how they’re interacting, and which approaches are becoming dominant and which are weaker. Those that align with corporate interests are generally stronger, and the ones that don’t are weaker. I am exploring how norms related to climate change and biodiversity loss are then being internalised by the state and the EU, and how they’re interacting with each other.
I think this is particularly interesting because we see a lot of responses to climate change that are becoming dominant – such as carbon offsets – which aren’t necessarily good for biodiversity. I’m interested in how these disordered approaches to climate change and biodiversity interact. Finally, I am collaborating on a book with colleagues that considers how a range of legal factors, such as economic differences, political ideologies, literature, film, science, race and indigenous issues, influence decision-making by judges in climate change adjudication across different jurisdictions.
International law is a component of my research, but it is a wider scope of inquiry to include other areas of domestic and European law, including private regulation – rules created by companies and by industry bodies that are not necessarily binding, or legal as such, but nevertheless help to regulate this area. What I find particularly interesting is how these different approaches work together to then influence domestic rule making. One such approach to climate risk disclosure that became incorporated into domestic law is the Task Force on Climate-related Financial Disclosures (TCFD). This is a process which has directed law domestically and been easy to implement, without requiring a new legal framework – all that is required are the mechanisms to implement it. We can see this occurring across a range of different areas, be that methane reduction in the fossil fuel sector or corporate responsibility, and these approaches shape domestic and EU law.
What are the challenges in your field of law in relation to climate action?
It is a very fast-moving area of law which makes it difficult for companies to keep up. Climate risk disclosure provides a good example – it was conceived domestically in the UK and was voluntary, even though there were statements from Government urging organisations to comply. There followed a rapid evolution from this point adding various layers of regulation and compliance to net zero. These changes are rightly driven by the urgency of climate change and the force of international engagement with the issue. However, changes are happening at such a pace that it is not always beneficial to companies that need certainty and to understand the laws that govern this area. Many corporates have lawyers to make sense of this field and advise accordingly, but there are a lot of smaller companies exempted from much of the regulation. However, the SMEs are an important part of the supply chain and also need to be part of the solution.
Ultimately, I think the speed and the nature of these reforms is very reactive. They are not sufficiently forward looking, and I don’t think they’re doing what a lot of industry wants. This points to the need for a holistic overview of these areas of law as a whole, in a way that is forward looking to 2030 and beyond. While necessary, it is not an easy task.
To create certainty, we need to view companies as components of the planet in a systems science context – the companies have a profound impact upon planet systems but are also profoundly impacted by disruptions to those systems. If we analyse the law from that perspective, we see the reforms that are happening are very focused on procedure and disclosure, which are only helpful in the medium to long term. Given that we have a climate emergency and a very short timeframe to reduce greenhouse gas emissions and prevent further degradation of other systems – all of which are interconnected and have cascading impacts upon each other – it becomes clear that disclosure regimes alone are not going to be sufficient to address the challenge. They don’t provide the certainty that business needs because they’re changing so rapidly. Considering the ways we regulate companies as a whole, I think there is a better way of trying to deal with how they impact upon the planet.
Many professions, including law, operate in specialist silos but complex challenges require a systems approach. Climate change does not exist alone – it is worsened by the degradation of natural environments. Recent research has revealed movement towards accepting that climate change and biodiversity loss are interlinked and impact upon each other quite substantially. They are seen as core planetary boundaries that we need to keep in check – if that’s even possible now – to prevent tipping points being triggered. While there is some positive change in the legal forms regulating companies, the regulation is not joined-up. This is probably a reflection of departments operating in silos and some just not seeing the environment as being in their purview.
What is the scope for existing laws to support climate action?
My primary focus is private law and I have mixed feelings about existing laws enabling climate action. In my view the law as it is currently constructed is responsible, or partly responsible, for placing us in a situation that is very difficult to change. So, in some ways I’m quite pessimistic about using the law as it stands.
The way in which the law has evolved over hundreds of years is very siloed to address specific areas of interest, but much of the law considers the environment as being outside of its purview – something it does not need or seek to address. While bodies of environmental law have evolved to try and address the impact that humans have on the environment, whether it’s local, regional or global, these attempts often come up against established legal structures and frameworks that prioritise other areas of law. In some ways the law as it stands hardens damaging human behaviour and makes it very difficult to address these behaviours sufficiently.
We need to think about how we can use and adapt the system to evolve the law in a way that recognises the environment as a primary concern. Some lawyers and academics can still be heard to say that climate change is not an issue for their area of law, but I would dispute this view. Climate change impacts everything and we need to accept that.
Which climate issue keeps you awake at night?
What worries me most is tipping points being triggered. I’m not a scientist but I do engage with papers warning of the consequences and impacts of 1.5 degrees global warming above pre-industrial levels. Unfortunately, I don’t think some people want to accept these warnings as correct until they happen, or they are confident of a technical solution which avoids changing behaviours. This really worries me because once we get to the point of triggering tipping points, there is no coming back – there will be change that is irreversible and in some parts of the world millions of people will die. Our environment is already changing – just look outside. Extreme events are happening – catastrophic fires in Canada, Australia and the US – and the heatwave that we are currently experiencing in the UK is unprecedented. These events are happening earlier and more regularly than we as laypeople would expect. On the other hand, I think these events provide evidence that makes spinning lines against the need for climate action harder and bring focus to the urgent need for adaptation.
We can change – rich countries have the money and the capacity and can support other countries to make the transition. But the will to change is missing at the moment.
Are there encouraging signs to be seen?
There has been some success for citizens forcing review of domestic climate law, and implementation by the courts citing greenhouse gas reduction targets as insufficient and not consistent with the Paris Agreement.
There are examples around the world where litigation and the use of tort law has, in some jurisdictions such as the Netherlands, been applied in order to target companies directly, and to obtain orders to reduce greenhouse gas emissions. Some of these cases have been appealed so the outcome is not yet certain. That said, we can see a very slow evolution of these areas of law to try and grapple with climate change. It is really interesting to see climate change irritating the law – putting it under pressure. I’m on the fence as to whether it will make a great deal of difference in the private law arena, but we’ve seen success in public law when claims are brought against states.
Another encouraging sign is the activity from companies and industry bodies themselves committing to net zero and regulating their supply chains as well. This is important because it can prompt domestic governments to follow. This activity is being facilitated by the Paris Agreement, the United Nations (UN) Framework Convention on Climate Change, UN Guiding Principles on Business and Human Rights and other bodies and initiatives including the Sustainable Development Goals and Organisation for Economic Co-operation and Development (OECD) guidelines for multinationals, helping to engage companies and create a third form of regulation that can have impacts where either government can’t or won’t intervene. We can see behaviour change emerging slowly – but making sure that it happens in practice is crucial.
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