Building a sustainable future

The word or expression of the year for 2019 according to Oxford University Press was “climate emergency”.  The uncontrollable bush fires in Australia - and before that the forest fires in California and the Amazon - have shown the world the reality of global warming.  On 1 May 2019, the UK Parliament passed a motion to declare a national climate emergency.  Although this Parliamentary motion did not create new legal duties, declaring a climate emergency is increasingly being used by governments, institutions and campaign groups to express concern about the environmental crisis facing the planet.  In November last year, some 11,000 scientists from around the world warned of the “untold human suffering” that would happen unless urgent action was taken on global warming.

While some of the solutions to mitigate against, and adapt to, climate change may be found in technology, it may require a more holistic approach to the causes and strategies to tackle this major threat.  The SDGs present a coherent framework for action for all 193 countries which signed up to the Goals.  They seek to stimulate action “in areas of critical importance for humanity and the planet”.  While the 2030 Agenda for Sustainable Development contains commitments made by Governments from across the world, it was based on significant consultation with wide sections of society and recognises the role to be played by all stakeholders, whether in the private, public or charity sectors.

Although it is beyond the scope of this briefing to consider in detail the meaning of the phrase ‘sustainable development’, the 2002 New Delhi Declaration on the Principles of International Law provides a helpful insight into the core of the concept of ‘sustainable development’:

“A comprehensive and integrated approach to the economic, social and political processes, which aim at the sustainable use of natural resources of the Earth and the protection of the environment on which nature and human life as well as social and economic development depend and which seeks to realise the right of all human beings to an adequate living standard on the basis of their active, free and meaningful participation and in the fair distribution of benefits resulting therefrom, with due regard to the needs and interests of future generations.”

How does the law work in this landscape?

One important perspective is to consider whether we are talking about international law or domestic law.

The 2030 Agenda for Sustainable Development (which includes the 17 SDGs) was agreed by the UN General Assembly in 2015 and forms part of the UK Government’s international treaty commitments. However, as was explained in the High Court’s judgment about the legality of the Government’s approach to the third run-way at Heathrow airport (quoted by the Court of Appeal in its judgment on 27 February 2020 at paragraph 192):

“It is well established that English law is a dualist legal system under which international law or an international treaty has legal force at the domestic level only after it has been implemented by a national statute.”

We will return to the Court of Appeal’s ruling at the end of this briefing to consider the interplay of International law and domestic law further.

Later on this year (9-20 November 2020), Glasgow will be hosting the Conference of the Parties number 26 (COP26) under the UN Framework Convention on Climate Change (UNFCCC). Key to the success of COP26 will be the action which countries agree to take in tackling the climate emergency.  This will include updating by countries on what are called Nationally Determined Contributions (NDCs).  These are the efforts which countries agree to take to reduce carbon emissions and to adapt to the impact of climate change.

The UK was the first country in the world to legislate (the Climate Change Act 2008) for a target to cut emissions by 2050 and last year it was the first country to set that target at “net zero emissions” by 2050.

But environmental measures pervade many areas of both our common law and our statute law.  In terms of legislation, we now have a new Environment Bill. The Government has heralded this as a flagship piece of post-Brexit legislation for the UK to continue to lead the world in defending the environment.  A new regulator will be established to enforce environmental law - the Office for Environmental Protection (OfEP).

An obvious example from our common law is how a landowner is provided with a right of action by the tort of nuisance for the escape of a polluting material from another person’s land. Action can also be taken against persons who trespass on land and this is one of the legal causes of action which can be taken against those campaigning on environmental issues where their right to protest crosses the line of lawful activity.

Information law includes the Environmental Information Regulations 2004 (EIRs). The EIRs require a public authority to disclose recorded information about “the state of elements of the environment”. This is akin to the Freedom of Information regime, although the EIRs are rooted in the UN’s Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.  Public authorities must make environmental information available pro-actively and members of the public are entitled to request such information from public authorities (subject to some exceptions).

While the European Convention on Human Rights and the Human Rights Act 1998 do not expressly include a human right concerning the environment, the various provisions may be called upon in different contexts. Reference for example may be made to Article 8 (the right to a private and family life) in interpreting the Aarhus Convention.  It remains to be seen how far the concept of human rights is extended into protecting the environment through judicial processes rather than political processes.

Some domestic legislation makes specific provision for environmental concerns.  The whistleblowing legislation - the Public Interest Disclosure Act 1998 - specifies that a category of qualifying disclosure is: “that the environment has been, is being or is likely to be damaged.”

The Equality Act 2010 (EA2010) provides protection from discrimination for those with a specified “protected characteristic”.  One such protected characteristic is someone’s “religion or belief”.  The EA2010 goes on to confirm that “Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”  Such a belief must be genuinely held and more than an opinion.  It must be cogent, serious and apply to an important aspect of human life or behaviour.  The Employment Appeal Tribunal has held that a strong belief in anthropogenic climate change where someone feels that they have a duty to live their life in a way which limits their impact on the earth to help save it for a future generation would be classed as a belief and protected under the earlier religion and belief regulations (now incorporated in the EA2010).  At the start of this year, an individual was successful in a crowd-funded legal claim in which he argued that his ethical vegan beliefs were protected in principle under the EA2010.

As we know, the Higher Education and Research Act 2017 (HERA2017) was passed to provide for a new regulatory and funding framework for the research and teaching elements of higher education in England.  The Office for Students (OfS) was established as the new statutory regulator for English higher education providers.  However, OfS was given no express statutory role to regulate registered providers in respect of environmental issues.  It would seem possible for an issue to fall within the definition of a ‘reportable event’, namely that the issue “materially affects or could materially affect the provider’s legal form or business model, and/or its willingness to comply with the conditions of registration".  The extent of what constitutes a reportable event falls outside the scope of this article.

We note, however, that the Chair of the Board of the OfS in a blog in February this year stated categorically that “OfS will not be silenced on sustainability.”  In the blog it was accepted that OfS had no statutory power to set emissions targets for registered higher education providers but that the OfS Board was of the view that it “should consult about how we might collect and publish data on carbon emissions for registered providers.”  It is unclear what statutory power this would be based upon.  The OfS also proposes to “publish data about students’ attitudes to climate change, as part of a package to encourage further action from universities and colleges."

Returning now to the recent Court of Appeal’s decision in the challenge to the Government’s approach to a third run-way at Heathrow.  This decision has been described in the press as “ground-breaking” as the Court of Appeal over-turned the High Court’s earlier decision and found the Government to be in breach of public law for not having taken into account its treaty commitments in the 2015 Paris Agreement on Climate Change.  It should be noted that the Court of Appeal made clear that it was not the role of the court to stray into the “forbidden territory of assessing the merits of a public decision under challenge by way of judicial review.”  The Court of Appeal’s judgment gives a detailed analysis of the relevant legislation under which the Secretary of State had promulgated the Airports National Policy Statement (ANPS), in particular section 5(8) of the Planning Act 2008.  That legislation - passed by Parliament - expressly required the Government to “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”  The Court of Appeal concluded that the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on Climate Change, concluded in December 2015 and ratified by the UK in November 2016.”  It remains to be seen the extent to which reference to the Paris Agreement will feature in further challenges to the decisions of Government and other public authorities.

Linking with the themes in the SDGs, the United Nations Environment Programme has published a “Greening Universities Toolkit”  which is “designed to provide universities with the basic strategies and tactics necessary to transform themselves into green, low carbon institutions with the capacity to address climate change, increase resource efficiency, enhance ecosystem management and minimise waste and pollution”.  The toolkit draws on experience from a number of jurisdictions, including the work undertaken by the UK’s Environmental Association for Universities and Colleges (EAUC).  The work of EAUC, the Association of University Directors of Estates and other sector bodies has also been referenced by the OfS in its recent board paper on reducing carbon emissions.  It will be interesting to see how this work develops, against the backdrop of the global challenges underpinning the SDGs.