Helping Clients Tackle Climate Change Through Biodiversity

Climate change is the biggest existential crisis facing us today. Unless urgent action is taken, it will devastate future generations and transform life on our planet. As lawyers and human beings, we have the responsibility to help to preserve our planet and to assist our clients in doing the same by helping them navigate the law.

Indeed, the Law Society’s recent – and very welcome – resolution urges solicitors to, “Engage in climate-conscious legal practice by… approaching any matter arising in the course of legal practice with regard to the likely impact of that matter upon the climate crisis.”

Preserving biodiversity has long been overlooked in efforts to tackle climate change, but, as stated by a recent landmark study by the Zoological Society of London, treating the global climate change and biodiversity crises separately is counterproductive and could even deepen the problem. Life on our planet is already disappearing, with 15 plants and animals declared extinct or extinct in the wild in 2020, while The International Union for Conservation of Nature’s Red List of Threatened Species, which assesses the level of threat to the more than 138,300 species of animals, plants and fungi currently in its database, warns more than 38,500 species are threatened with extinction.

Clearly, the Environment Act alone will not solve the UK’s contribution to the climate and biodiversity crisis, but there are some hugely welcome measures that the Act introduces to assist lawyers in their efforts to use the law to protect our planet.

Treating the global climate change and biodiversity crises separately is counterproductive and could even deepen the problem.

‘Greening’ supply chains 

The environmental credentials of a business’s supply chain will already be of concern to any company with an interest in sustainability and preserving the environment from a reputational standpoint. However, the Environment Act goes further, increasing due diligence requirements placed on businesses to ‘green’ their supply chains, including a duty to establish a system for identifying, assessing and mitigating the risk of illegally produced forest commodities entering their supply chains.

Lawyers can assist businesses in meeting new requirements by writing their due diligence policies, as well as working with the client to help them to ‘green’ supplier contracts. To protect clients and their reputations, ‘green clauses’ can require net-zero standards for suppliers, helping clients meet their own net-zero targets by reducing their Scope 3 emissions. They can use incentive-based models in agreements to ensure sustainability objectives are adhered to and maintained or use late payment mechanisms to support green causes or off-setting. There are also opportunities to introduce green execution protocols, which lawyers and their clients can collectively agree in heads of terms at the start of an execution, minimising the carbon footprint of deal execution.

Lawyers can make contracts and processes green in a multitude of ways, working with clients to ensure that their business partners are aligned with environmental goals.

Leaving a lasting legacy

The Government’s landmark Environment Bill introduced legislation for conservation covenant agreements, proving there is growing recognition of the importance of protecting the environment, wildlife and habitats.

Conservation covenant agreements enable a landowner to enter a voluntary, but legally binding, contract with a responsible body, such as a charity or local authority, to preserve wildlife, habitat or heritage assets. Conservation covenants, binding agreements with remedies for breach including specific performance, damages and injunctions, are a tool where landowners can leave a lasting legacy and create ecological benefits for generations to come.

Whether the obligation is to preserve ancient woodland or to require a biodiversity net gain, it will be registered with the Land Registry as a local land charge – meaning if the actions of a subsequent owner circumvent the terms of the original agreement while the obligation is still binding, they may face prosecution, even 150 years later.

If landowners can be encouraged to support conservation covenants, they can be a key asset for preserving biodiversity. Lawyers may need to raise awareness of new legislation among clients and how conservation covenant agreements can help clients fulfil their environmentally friendly aims and wishes.

New requirements for local authorities

The Act also extends some protections for the natural environment, including a requirement for local highway authorities to consult with communities before felling street trees (unless the trees qualify for certain exemptions, as may be the case with trees infected with ash dieback).

Consultation must be in accordance with established principles and regard any guidance issued by the relevant Secretary of State for the present purpose, including that local authorities must give sufficient information to give ‘intelligent consideration’ – meaning that consultations must be available, accessible and easily understood so that consultees can provide an informed response.

Law firms can provide guidance to local authorities to ensure they are acting within both new and established principles, as well as assisting their clients with essential record-keeping and audits on decisions made. Lawyers will also be able to assist local authorities in the development of ‘tree felling’ policies, consultation and internal governance. For local authority clients, documenting decision-making and actions taken will prove critical in defending any challenge that consultation should have been undertaken in a given instance.

Local authorities may also need to consider how tree felling fits into an environmentally friendly agenda and ‘green’ decision-making, alongside any commitments around sustainability or to mitigate climate change. Tree felling – even when justified – may have greater implications for a local authority client’s reputation, now that the Act may increase scrutiny on decisions made, particularly for local authorities who have declared a ‘climate emergency’. Lawyers can of course assist in protecting the reputation of the client should a challenge arise.

Tree felling – even when justified – may have greater implications for a local authority client’s reputation.

Increasing biodiversity net gain

Parts of the Environment Act have potentially huge implications for developers, including Schedule 14, which makes provision for a 10% biodiversity gain to be a condition of planning permission in England.

Coupled with the application of biodiversity net gain requirements to nationally significant infrastructure projects, such as major transport developments (the likes of HS2), the Act should put pressure on developers to become more environmentally aware and to consider developments and actions based on how they will affect an area’s biodiversity.

An example of this was seen last year, when the HS2 infrastructure project faced criticism for felling a 300-year-old tree near Leamington Spa with the justification that they are planting replacement trees and shrubs. The quality of HS2’s replanting programme was also criticised, with a claim that many of the saplings had died due to not being planted properly.

Lawyers can assist developers by helping them navigate new laws, assess any plans for biodiversity net gains to ensure they fit within legislation outlined in the Environment Act and avoid a ‘box-ticking’ exercise that may attract widespread criticism and scrutiny without fulfilling any obligations to preserve the environment.

While it is clear that some progress is being made, the Environment Act and other measures, including the recent creation of the Office for Environmental Protection (OEP), will not be enough to mitigate the climate emergency.

The OEP, which has been set up to provide independent oversight of the Government’s environmental progress, has been criticised for its limited role and powers. While the body will receive and validate complaints in relation to public authorities, it will not make any final decisions. The Environment Act, too, has faced criticism for some omissions, such as how biodiversity net gains will be measured, meaning challenges may lie ahead for legal professionals attempting to hold developers to account.

The Environment Act and other measures…will not be enough to mitigate the climate emergency.

Nevertheless, the Environment Act is certainly a step in the right direction, and should greatly assist lawyers in helping their clients protect our environment, as well as holding those who do damage to account.

Natalie Barbosa, Senior Associate

Anthony Collins Solicitors

76 King Street, Manchester, M2 4NH, United Kingdom

Tel: +44 0161 470 0312

E: Natalie.barbosa@anthonycollins.com

Natalie Barbosa provides advice to charities and health and social care organisations, with a focus on fundraising regulation and advice, commercial/contractual partnerships and green projects. She also helps lead Anthony Collins Solicitors’ work in the green sector, assisting clients in achieving their sustainability goals, greening their procurement processes and working to improve biodiversity. She leads Anthony Collins Solicitors’ involvement with The Chancery Lane Project, a collaborative effort of UK lawyers using the law and contractual clauses to address the climate and ecological crisis.

Anthony Collins Solicitors is a specialist law firm with a focus on improving lives, communities and society. In the 45 years since its founding, the firm has pursued its social purpose through its work with clients across a range of sectors including health and social care, education, housing, local government and social business. Anthony Collins Solicitors has also been recognized as a top-five nationally leading charities practice.