June 2021
Law is one of the tools available to us to help reverse the destruction of Nature – but as our legal systems are part of the problem, they must be transformed as part of the solution.
Top-down environmental regulation through law, such as setting targets for government or creating legal duties, is a key way to protect Nature. Air quality regulation, for example, made it possible for ClientEarth to force more effective action through legal challenges against the Government, and the Dutch Urgenda challenge resulted in a judicial order for the government to have more stringent climate change policies.
While these wins are critically important, we must also think bigger. The top-down approach of asking or attempting to force governments to take action to reverse ecological destruction has not worked to halt general trends of ecological destruction. As well as top-down legal change, wholesale systemic change is needed.
Ecological destruction is part and parcel of a whole breadth of human activity, from building developments and transport systems through to agricultural processes and waste. Scientists have made clear that we need rapid and far-reaching transitions in many areas, not just piecemeal regulation and policies.
Top-down legal change or a bolt-on legal duties will not be enough on their own to bring about the systemic change that is needed, especially without strong legal obligations to achieve the target. For example, despite the UK having a Climate Change Act which is frequently describes as ‘World Leading’, the UK is not on track to actually meet the carbon budget targets set under the Act.
Earth Jurisprudence is an approach to law which sees how our current legal systems are an interwoven part of the problem. Nature features primarily as objects incidental to ‘land’ and is owned by humans with almost absolute control. While environmental regulation, legal duties and targets do exist, they are something of an afterthought. Decision makers have ecological considerations as just one factor among many to take into account, and these traded off against economic pressures such as growth, jobs and housebuilding. When we look at the current power balance between humans and Nature – in which humans dominate and plunder Nature with abandon – we can see that our legal system facilitates and perpetuates this destruction.
It should be said that this isn’t a simple case of ‘humans’ versus ‘Nature’.
We are part of Nature, not separate from it, and our ecological relationships are part and parcel of our social relationships. Ecological catastrophe cannot be averted simply by “environmental” regulation but by addressing the social relationships and injustices which are interwoven with it, such as the economic drivers behind ecological degradation.
Once we recognise that our legal systems are an interwoven part of the problem, it follows that they must be transformed as part of the solution, which must go beyond just asking a government to do something. A bottom-up solution would be to empower Nature to protect its ecological integrity through human representatives. Sustainability should become a fundamental and powerful legal principle which outweighs other considerations, instead of just one thing among many for decision makers to take into consideration. Targets could be set not by government, as in the Environment Act, but instead by independent scientific bodies. And instead of only affecting government, these could all be directly enforceable against local authorities and private actors.
The end goal is not formal legal rights but changing the substantive balance of power. Stopping ecosystems from being destroyed should not be an appeal to a public body to take a different decision or a hope that a regulatory body brings enforcement action against a polluter. Instead, ecosystems and habitats should have legal rights which enable citizens or NGOs to bring legal actions to protect their integrity, protecting them from degradation from local authorities, national government or private actors.
The Universal Declaration of the Rights of Mother Earth suggests that Nature should have legal rights to exist, to be respected and to integrity, among others. Many readers will be aware of cases of such rights being recognised in New Zealand and India, or being used as the basis for legal actions to protect the Amazon rainforest. This approach often aligns well with indigenous worldviews, which is part of why Rights of Nature have been taken forward in Bolivia and Ecuador.
In the UK, for example, we could include Rights of Nature as part of the proposed Nature Recovery Network. If we are serious about nature recovery, ecosystems should be given legal status, rights to integrity, and the ability to have legal challenges brought on their behalf, which would be far stronger than the current approach in which local authorities are asked to ‘make plans’.
This may seem like quite a left-of-field proposal, yet scientists are clear that we need radical and far-reaching transformations and this is exactly the sort of change that must be part of the response. It makes sense that ecosystems should be able to protect themselves from destruction, instead of only being human property. The idea is not that law alone can save us – law can only be part of change if there is enough political will to make it happen – but legal transformation is necessary to transform the current destructive systems we have.
Alex May is a writer, activist and legal theorist who works in politics. He has undergraduate and master’s law degrees and is working on transforming our understanding of law and legal systems. More about legal ideas can be found at www.interconnectedlaw.com and more about Alex at www.alexmay.co.uk.
Follow @AlexJFMaizy & @InterconLaw
The opinions expressed in this blog are the author's and not necessarily those of the wider Link membership.
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