As for any other human cause, the law has also developed various and ever-evolving strategies to manage and mitigate impacts on the environment. Finding ourselves in the Covid-19 lockdown, undeniably benefits the environment, while exposing vulnerabilities of our human nature: In Delhi, fine particles and gas nitrogen fell by more than 70%; in Punjab, people can see the Himalaya for the first time. Reduced noise levels in our oceans due to cruises and other maritime traffic’s stand still might strengthen the reproductive success of marine creatures, according to scientific research. Hearing birds trilling and squaring in new amplitudes, it seems to be a good time for taking stock of what the law has actually achieved and what it might be aiming for in the future…
Throughout human history, regulation and governance have been addressing conflicts between human development and environmental protection.
Around 200BC, the Indian jurist, royal adviser and economist Chanakya mentions penalties and punishment for causing injury to living creatures, including trees. In 193AD Herodianus, a Roman civil servant, describes imperial measures such as 10-year long tax exemption and absolute ownership to reward those who cultivate abandoned land. In Britain, the Public Health Act of 1848 becomes the first major piece of environmental legislation that addresses sanitation, clean water and waste removal. Promoted by social reformer Edwin Chadwick, the Act, together with some subsequent measures, is consolidated under Benjamin Disraeli’s Public Health Act 1875 which establishes and names local authorities as rural and urban sanitary authorities.
In 20th and 21st century environmental law emanates as a self-standing body, nourished and inspired by international cooperation and organisation. The 1972 UN Conference on the Human Environment triggers the establishment of environmental ministries and Environmental Protection Agencies in many Western countries. Acknowledging in its Declaration that ‘both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights’, the 1972 Conference is followed by the 1992 Conference on Biological Diversity in Kenya, and the international conferences on climate change under the umbrella of the UN Framework on Climate Change, just to name a few. Thankfully, international cooperation increasingly embraces formerly non-participating nations such as China, Russia and Middle Eastern countries. New concepts such as sustainable growth and development, producer responsibility and precaution spread around the globe and are promoted, enabled and at times enforced by national, regional and international laws.
Increased global environmental awareness also confers new meaning to long-established principles such as access to justice and the rule of law. Since 2005, public participation is facilitated by the implementation of the 1990 Aarhus Convention in the UK; the Convention provides for a basic right of access to environmental information held by public authorities, litigation fee caps in environmental cases, and for consultation of the public when adopting relevant national planning policies. On this basis, judicial review proceedings were recently brought to challenge the UK Government’s policy in favour of a third runway at Heathrow. The Court of Appeal drew a fine line between political and legal implications and ruled that the policy was unlawful as it had failed, contrary to the Planning Act 2008, to take the 2015 Paris Agreement into account.
The Planning Act not only provides for development consent to National Significant Infrastructure Projects (NSIPs) but also for review of National Policy Statements for Infrastructure. This allows for flexibility when circumstances have change significantly on which these policies were originally based. Such changes could be amendments to the Climate Act 2008 in 2019, which set the legally binding target of the reduction of 80% GHG emissions up to least 100% by 2050.
The law’s abundance of approaches and tools to effectively address environmental impacts invites society at large to make use of them. Coming out of the current pandemic we will have been tested in empathy, creativity, resilience and resourcefulness as indispensable attributes to recovery. Will our experience be transferable and sufficient to rethink and to restore our dysfunctional relationship with nature? Will Covid-19 in the end release in us the potential to create a throughout healthy and sustainable society?