Environmental Law and Climate Change
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Climate change is a major issue in environmental law. Outside of climate-specific legal issues, several other aspects of environmental law – including waste, air pollution, water, deforestation and biodiversity – are relevant to climate change. More so than other legal areas, environmental law and climate change law have a largely synergistic relationship, in that actions taken to protect the environment will generally assist efforts to tackle climate change. In this way, environmental law plays a crucial role in assisting the UK to achieve net zero. Established principles of environmental law have seen application in the fight against climate change, and the climate crisis has provided an impetus to increase the level of legal environmental protection. On some occasions, however, environmental law must strike a balance between reducing emissions and fulfilling other environmental objectives.
The Environment Act 2021 transposed many environmental rules that previously applied to the UK through EU law into domestic law, and set the framework for environmental regulation in the UK. Many other statutes and cases govern specific issues in environmental law, a number of which are relevant to climate change. This section evaluates how non-climate aspects of environmental law is relevant to climate change through evaluating key environmental problems and the legislation that aims to address them.
Key points in this section:
- Legal approaches to climate change have been influenced by traditional environmental regulation, but are now also influencing the creation of new environmental legislation as seen in the Environment Act 2021.
- Waste management is a key environmental priority and a source of emissions – regulations that aim to reduce waste and improve waste management processes may help to address climate change.
- Deforestation and biodiversity loss are significant environmental crises that are closely linked with climate change. Climate change can accelerate forest and biodiversity loss, in turn making it more difficult to meet policy goals and comply with regulations. Protecting nature is becoming a larger legislative priority, and relevant laws can also reduce emissions by protecting important carbon sinks.
- Some greenhouse gases are sources of conventional air pollution, and many processes that emit greenhouse gases also emit other pollutants. Legislation which aims to address air pollution can therefore help to mitigate climate change, and vice versa.
- By increasing the likelihood of extreme weather events such as floods and droughts, climate change poses risks to the UK’s water system which makes water regulation a necessary part of adapting to climate impacts.
How climate change is impacting environmental law
Climate change is relevant to many of the distinct issues that environmental law aims to address. This section outlines some of the interactions between climate change and other environmental imperatives, and how these are impacting legal regimes.
Effectively managing waste, like tackling climate change, requires long-term thinking, and there is the possibility that waste management processes subject to weather-related impacts are being affected by climate change. Key risks range from disruption to infrastructure from increased flooding; damage to site buildings; changes in temperatures and hydrology which could impact waste management processes; increased health risks to workers arising from increased exposure to UV radiation; and increased risk of slope instability and soil movement owing to increased rainfall.
In 2021, the Environment Agency highlighted similar physical risks including erosion impacting land and landfill restoration, wind damage and waste fires. Furthermore there may be indirect climate impacts in the form of runoff from firewater or failure of pollution control systems resulting from weather or flooding. The potential impacts of such climate-related risks will depend on the specific waste management sites. Ultimately, there will be increased demand on staff time, resources and incident response, potentially leaving open the possibility of legal action if appropriate adjustments are not made.
Since December 2019, all persons who carry out new bespoke waste and installation environmental permit application for over 5 years must undertake a climate change risk assessment. Operators must consider how extreme weather events may impact compliance and implement measures to minimise the impact on the environment and enhance resilience and business continuity by avoiding unforeseen start-ups, shutdowns and other business interruptions.
There is a suspected risk of litigation for those who operate in the plastic waste management industries. Similar plastics-related litigation has been spearheaded by environmental NGOs in the US, including Earth Island Institute against Coca-Cola, Pepsi and others; and by ClientEarth against Ineos, a petrochemicals group seeking to build a large plastics plant in Belgium.
There is some uncertainty regarding how trees, woods and forests in England will respond to climate change. Nonetheless, research points to several likely impacts. These include flooding caused by extreme rainfall which may result in the present forest road drainage network being inadequate. Stronger and more frequent winter gales may lead to increased levels of damage, and wildfires are becoming an ‘almost certain’ increasing factor which will affect the lifespan of woodlands and forests.
Accelerated forest loss also contributes to climate change itself through releasing carbon dioxide into the atmosphere. Another risk posed by climate change to forests is the possibility of climate-induced ‘tipping points’. Examples of tipping points affecting deforestation include the Amazon forest dieback where changing precipitation patterns and ongoing anthropogenic deforestation leads to lower quantities of water being recycled for regional precipitation and, as a result, increased tree mortality and reduced forest resilience to fires and drought. Another example is the theory of drought-induced mortality whereby trees with an already weakened resilience are affected by drought to the point where hydraulic failure occurs or carbon reserves become depleted. This can result in widespread tree mortality and a tipping point.
While there is little evidence regarding the legal risks associated with climate-change induced deforestation and tipping points, it is possible that tipping points brought about by anthropocentric actions could trigger legal issues. Governments could face legal action if foreseeable preventative and mitigating actions are not taken. These risks are more likely to materialise in countries with large forested areas, but may still be relevant to the UK if they emerge under international law or are relevant to UK businesses with operations or supply chains abroad. More generally, as climate change makes managing forests more difficult, complying with existing obligations with regards to conservation may become more difficult.
Air pollution is influenced by climate change in several ways including the alteration in frequency, severity and duration of heatwaves and air stagnation events. Climate change modulates the concentration of fine particulate matter (PM2.5) via modifying atmospheric circulation, temperature, and the hydrological cycle. Furthermore, increased desertification can raise the levels of desert dust particulate matter. Westervelt et al. report that climate change and local temperature increases results in increases in PM2.5 in all except one Representative Concentration Pathways (RCPs). The increase in PM2.5 in the atmosphere leads to increased infant mortality. As illustrated by the case of Ella Kissi-Debrah, air pollution might now be deemed a legal cause of death by coroners.
Heatwaves caused by climate change can cause increased air pollution in urban areas caused by strong sunlight. In summer 2021, there were 1,634 excess deaths during periods of heatwaves, while in 2020 there were 2,556. The increase in frequency of wildfires as a result of climate change, resulting in ash and smoke, is another climate-induced cause of air pollution. Government failures to reduce these impacts may result in litigation. In ClientEarth v Secretary of State for DEFRA, ClientEarth successfully brought litigation to have the 2017 National Plan on air pollution deemed inadequate.
Climate change’s impact on weather patterns may reduce the security of energy supply. Supply-demand deficits are resulting from demand pressures and reduced abstraction licences that can be linked to the effects of climate change.  In the absence of action, routine high standards and fair prices could be jeopardised, and environmental damaged caused, leaving open the possibility of legal action. Present business approaches may not be sustainable in this context, and without changes there is a risk of not having enough water for communities, farmers, wildlife and the environment.
Significant threats to water quality result from climate change and urbanisation. Changes to timing and the severity of rainfall events are predicted to significantly increase the risk of flooding in urban areas as a result of climate change. Though there is a lack of nationally-focused research on the effects of climate change, it is generally accepted that flood risk is increasing, water quality is not at desirable levels, and that population increase and climate change present significant challenges. 
Climate change may also greatly affect water regulation as regards flooding. When making planning applications, the Environment Agency considers whether a property is at risk of flooding by considering increases in water as a result of climate change as required under s 4 of the Environment Act 1995 which contains the objective of achieving sustainable development.
Actors may also face legal action due to water pollution driven by increased flooding. Responsibility for pluvial flooding is transferred under the UK Flood and Water Management Act (FWMA) 2010 from central to local government, whereby local authorities and Lead Local Flood Authorities are responsible for managing such risks. Increased flooding brings increased risks of water pollution and, with that, risks of litigation. Thames Water has been fined several times for ‘foreseeable pollution’. In November 2021 Thames Water was fined £4 million for a raw sewage leak spanning 30 hours. Furthermore, on 26 February 2021 Thames Water was fined £2.3 million in the Crown Court and ordered to pay costs of almost £90,000.
Climate change is the second largest risk to nature in the UK, with only agriculture having a greater impact. It has already greatly altered many habitats and species, causing many species to shift north, risking extinction. By reducing biodiversity, climate change’s physical impacts may also aggravate legal risks as relevant regulations become effective, for example requiring that developments create a net gain in biodiversity. Less directly, as the biodiversity crisis gains attention globally, efforts to address climate change are informing new policy tools that aim to protect ecosystems.
How environmental law can help drive the net zero transition
The Environment Act 2021
The Environment Act 2021 provides a broad framework through which specific environmental rules and regulation will operate. While it remains to be seen how the government will implement the Act’s provisions, it represents a significant opportunity for environmental law to drive the UK’s transition to net zero. The Act requires the Government to devise long-term legally binding targets concerning biodiversity, water, air quality, resource efficiency and waste management. In addition to making the government accountable, it also sets requirements with which certain businesses must comply, some of which are explored below. The Office for Environmental Protection is an independent watchdog created under the Act and may advance climate action by ensuring accountability and compliance with environmental regulations.
The Act list five overarching environmental principles, all of which may be relevant to climate change:
- Integration principle
- Prevention principle
- Rectification at source principle
- Polluter pays principle
- Precautionary principle
The Government’s 25-year environmental plan supports the Act by requiring that all policies, programmes, and investment decisions take due consideration of climate change.
Environmental groups and other NGOs have used the courts to advance and influence environmental law and policy, both by bringing claims for judicial review against public authorities and seeking to hold private entities accountable for environmental harms. For example, ClientEarth successfully challenged the government’s air quality plans, leading to new plans being introduced. Previous cases in the European Court of Justice may inform future. In the Welsh NOx case, the court held that the UK failed to correctly apply the provisions of the Large Combustion Plant Directive to the Aberthaw Power Station in Wales by permitting the plant to emit nitrous oxides above the permissible EU limit through the burning of highly volatile fuels.
Despite the waste sector being highly regulated, express recognition of climate change within the legal framework is limited. Nonetheless, there is great potential for waste management to assist the UK in meeting its net zero targets. Indeed, waste management and the recycling sector can assist the UK in saving more emissions than the sector produces. In 2018, its activities resulted in almost 50 million tonnes of avoided carbon dioxide equivalent emissions across the economy. The Net Zero Strategy launched on 19 October 2021 aims to achieve ‘near elimination of biodegradable waste to landfill’. Specific actions are being taken by both public and private actors within the waste sector to achieve net zero. In the Strategy, the government also committed to reducing ‘energy from waste’ emissions.
Activities regulated under the Environmental Permitting Regime, consolidated by the Environmental Permitting (England and Wales) Regulations 2016, could assist the UK in achieving net zero. The most polluting industries (Part A (1) and Part A (2) installations), are regulated in respect of their energy efficiency and emissions, including landfills and large incinerators, while lesser-polluting industries (Part B installations) are regulated solely in relation to their air emissions.
The Waste (Circular Economy) (Amendment) Regulations 2020 enhance the UK’s approach to minimising waste, by using less resources repeatedly and generating less waste. It does this by providing design and fiscal incentives to make sustainable business models and products the status quo. These efforts are anticipated to reduce GHG emissions and thus constitute a step in the right direction towards achieving net zero.
The Courtauld Commitment is a voluntary agreement across the UK to reduce food waste and GHG emissions while sourcing water sustainably. This has resulted in 7% lower emissions between 2015 and 2018 thus further demonstrating the capacity for waste management to contribute to achieving net zero. Knowledge gained from such initiatives could be shared with other sectors, particularly those which are inextricably linked with the waste sector, including healthcare, construction and industry. This could improve the efficiency of the transition to net zero as emission reductions are reduced higher up the value chain.
Deforestation is one of the greatest sources of carbon dioxide, with land use changes accounting for four billion tonnes of CO2 globally in 2017. Protecting forests is therefore necessary to tackling climate change. Globally, policymakers have thus created initiatives like the UNFCCC’s ‘Reducing Emissions from Deforestation and Degradation’ (REDD+) programme, which provides financial incentives to governments, agribusinesses and communities to maintain and increase forest cover. A 2017 study led by Bronsom Griscom estimated that natural climate solutions could lock up the equivalent of 23.8 billion tonnes of CO2 per year, while a more cost-effective, plausible solution would lock up 11-15 billion tonnes of CO2 per year (roughly 30% of the CO2 that must be dealt with annually). A 2018 report by the UK Royal Society largely corroborated these figures, estimating that reforestation could remove between 2 to 18 billion tonnes of CO2 per year. Reforestation, if done correctly, can also help to address the biodiversity crisis.
In this context, reducing deforestation both at home and abroad are key climate policy priorities in the UK. Key action areas include building demand and market share for sustainably produced timber and agricultural goods; addressing barriers to investment in areas that reduce deforestation, including enhanced regulatory environments and clear land tenure; ‘greenfield’ investments’ which will enhance the profitability of forest areas; ‘Brownfield’ investments; and jurisdictional approaches whereby the aforementioned interventions can be tested. In providing these interventions, the UK seeks to apply robust social and environmental safeguards consistent with the UNFCCC and the Convention on Biological Diversity.
The Environment Act will make it illegal for large business in the UK to use forest risk commodities produced on land illegally occupied or used. While this is positive and will go some way towards enabling the UK to achieve net zero, ClientEarth highlight that this is worrying as roughly “one-third of global tropical deforestation is considered ‘legal’ under local laws”. As a result, the UK’s supply chains may still be linked to ongoing deforestation.
There are several measures which can be taken to combat air pollution which would also positively affect climate change considering that both air pollution and climate change are largely caused by analogous sources. Globally, the most effective method of combatting climate change and air pollution is the phase out of fossil fuels. As regards reducing indoor air pollution, this can be achieved by reducing fossil fuel and biomass reliance for indoor cooking and heating. Other methods of reducing pollution include replacing coal fired power stations with renewables; the use of electric vehicles; prevention of crip residue burning; forest fire prevention; reduction in diesel emissions; substitution of coal fired power stations with gas; and improvements in energy efficiency.
Akasha et al note that discussing climate change without air pollution can lead to risks. Clean renewables are the most favourable option in terms of health and air quality benefits however there are challenges in accessing and relying on such resources. For example, while nuclear energy is the cleanest source of energy, the safety implications are profound in the case of disasters and their use in turn represents a trade-off between achieving the net zero transition, and risk of loss of biodiversity for example in cases of accidents. Combustible renewable energy may be suitable for low income and rural areas however it can drastically increase local air pollution. Moreover, carbon capture and storage can reduce emissions but cause greater climate and pollutant emissions elsewhere in the production chain. These considerations must be borne in mind when implementing air quality measures to achieve net zero.
Under the Environment Act 1995, local authorities are vested with control of achieving air quality standards in accordance with the LAQM. Notably, air pollution standards and enforcement fall largely beyond their remit. However, the government’s creation of the Clean Air Zone framework enables local authorities to implement local Clean Air Zones in order to reduce pollution.
Litigating issues of air pollution can also assist the UK in achieving net zero. ClientEarth successfully brought three legal actions against the government challenging the governments air quality plans (ClientEarth No (1); ClientEarth No (2); ClientEarth No (3))which led to proposals for Clean Air Zones to restrict polluting vehicles in cities across the UK. Furthermore, the Ultra-Low Emission Zone in London has reduced pollution by 37% in its first year. As many air polluting substances contribute to climate change, litigation is a powerful tool for advancing both air pollution reductions and net zero.
The Air Quality Standards Regulations 2010 and the Air Quality Standards (Amendment) Regulations 2016 set obligatory targets relating to air quality, primarily directed towards pollutants harmful to human health. ClientEarth successfully challenged the UK’s air quality plans on three occasions, leading to the Clean Air Strategy wherein the government endeavoured to halve harmful pollutants to human health.
The Clean Air Strategy comprises several actions to reduce emissions including a commitment to legislate to prohibit the sale of the most polluting fuels. The majority of the Air Quality (Domestic Solid Fuels Standards) (England) Regulations 2020 entered into force on 1 May 2021. These regulations introduced restrictions that could assist in the achievement of Net Zero, including limits on the sale of wet wood for domestic burning, restrictions on the emission of sulphur and smoke from manufactured solid fuels and the phasing out of bituminous coal.
More ambitious proposals include the Clean Air (Human Rights) Bill 2022-2023, which seeks to create a human right to clean air and would require the government to limit the concentration of pollutants in the air in accordance with scientific evidence and WHO guidelines. As these guidelines are more stringent than current UK limits, this would lead to enhanced protection.
Water is the key medium that links atmospheric temperature rises to changes in human and physical systems, so water regulation has a key role to play in the net zero transition. The Environment Act 2021 seeks to promote effective collaboration between water companies through statutory water management plans which in turn could assist the UK in achieving net zero. The Environmental Permitting Regime covers water and groundwater discharge activities and therefore the possibility of penalties, and suspension / revocation of permits in case of pollution may positively impact the UK’s net zero transition.
Water law can also help drive the net zero transition through encouraging customers to use less water by using wastewater treatment processes which are less energy intensive and by capturing methane emissions from wastewater treatment plants. A stronger regulatory system requiring service providers to reduce leakage could assist in transitioning to net zero by reducing the requirement for carbon-intensive infrastructure and treatment. The Environment Act 2021 provides for the minimisation of environmental damage from water abstraction.
Wetlands and peatlands are crucial for carbon storage. A peatland in the Democratic Republic of Congo stores as much carbon as had been emitted from burning fossil fuels globally for three years, roughly 30bn tonnes. Notably peatlands cover roughly 10 percent of the UK’s land surface, and therefore represent an essential method of preserving carbon sinks which could assist the UK in achieving net zero. Preserving peatland in the UK has been a policy priority not only for central government, but also for relevant local authorities.
The Environment Act 2021 creates a framework for the preparation of Local Nature Recovery Strategies, which the government envisions will contribute to tackling climate change. Such proposals establish priorities and map proposals for specific actions to enhance nature’s recovery and provide wider environmental benefits. The plans are to be shared across public, private and voluntary sectors and will help in achieving wider environmental objectives, including carbon sequestration, which in turn could assist the UK in meeting net zero targets. Requirements in the Environment Act that new developments result in a gain in biodiversity, which are imposed on local authorities but also implicate developers, may have broad impacts on nature in the UK.
As explored above, wetlands are important carbon sinks. The RAMSAR Convention of 1971 protects important wetland sites and affirms the importance of conservation and wise use of wetlands for climate change (per Resolution XI.14 on Climate Change and Wetlands).
DEFRA published a consultation paper titled Nature Recovery Green Paper: Protected Sites and Species, which strives to propose and consult on reforms that are required to meet the species target that will be introduced under the Environment Act 2021 and the government’s commitment to protecting 30% of land by 2030.
Rights and personhood for nature
Giving legal personhood to nature, an idea that has been around for decades, would give natural features standing in courts. They may be an alternative to environmental regulation when such regulatory efforts fail. Globally, legal actions recognising such rights have increased, with successful actions including granting the Atrato River in Columbia, and legislation granting the Whanganui river in New Zealand personhood rights, along with along with such rights being enshrined in constitutions worldwide, including in Ecuador, Bolivia and Uganda. Efforts to recognise ecocide as an international crime also support this movement. In Ireland, NGOs including the Environmental Justice Network have initiated movements to support the establishment of rights of nature. Friends of the Earth Northern Ireland has also called for rights of nature to be recognised by councils in declarations and motions. Ireland’s Citizens Assembly on Biodiversity Loss also recognised the potential for a constitutional change to recognise the rights of nature, thus illustrating the potential for environmental law to drive the net zero transition. There have been some similar proposals in the UK, which would represent a significant, albeit potentially unlikely, development.
Written by Roisin Finnegan
Reviewed by Nick Scott
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