What is Commercial Environmental Law? A UK Case Study

by Amber Rochette

The environmental legal rights movement began in the 1970s, when justice William Orville Douglas stated in his dissenting opinion that ‘trees have standing’ too, in the case of Sierra Club V Morton [1]. At this time, the notion that natural resources ought to have their own legal rights, and sue for their own protection was a controversial opinion at the time. In the same year, the United Nations Conference on the Human Environment in Stockholm was the first of its kind to make the environment a major issue [2].

The first Environmental Protection Act was enacted in 1989, which held companies accountable for any of their environmental damage [3]. Fast forward to today, and environmental laws and obligations such as net zero are becoming commonly known terms in the public sphere. The UK Climate Change Act 2008 has legislated a set target for the UK to reach net zero carbon emissions by 2050 [4]. Looking at the UK’s current trajectory, this is ambitious indeed. This means that the legal and regulatory framework is constantly trying to play catch up with evolving science and knowledge in the area. Commercial environmental law can be described as the framework of laws that businesses have to adhere to (on top of their mandatory human rights due diligence) to protect the environment that they operate in – and the number of regulations are constantly increasing now that the UK has to meet net zero targets.

Environmental law is built on the polluter pays and precautionary principles that were defined in the 1992 Rio Declaration [5]. The polluter pays principle outlines that where possible, the polluter should bear the cost of the pollution, rather than leave it for others to suffer the cost. The precautionary principle aims to mitigate risks, and helps decision-makers process risks which may lack scientific input at that precise moment. 

The Environmental Damage (Prevention and Remediation) (England) Regulations 2015, transposing the EU Environmental Liability Directive, gives the Environment Agency (in England) the power to enforce action for any environmental damage [6]. Environmental damage in this context refers to a protected species or natural habitat, a site of special scientific interest, or damage to water or land that results in a risk of adverse effects on human health. A person or corporate body found to be in breach of their duty of care to the environment could face a fine and prosecution, proportionate to the damage [7]. Citizens can raise concerns with the Environment Agency directly, who will then investigate and ensure remedial action is taken if required, a perfect example of the polluter pays principle in action. 

The precautionary principle can be seen in the requirement for an Environmental Impact Assessment under the UK Town and Country Planning Regulations 2015 [8]. This domestic law ensures that the local planning authority takes into account the potential significant effects that the development is likely to have on the environment and community. The regulation requires that an Environmental Impact Assessment is undertaken for certain developments, which involves screening, scoping, preparing an environmental statement and making a planning application consultation – giving members of the public the opportunity to share their views about the proposed development. At this stage, if there are any significant concerns that lack scientific evidence, best practice would be to exercise the precautionary principle before granting any planning permission.

Many people argue that the polluter pays and precautionary principles are weak in their application. Both come with serious challenges in their own right, as they do not always work to the desired effect. With the polluter pays principle, it can be extremely difficult to prove who, where and how the environmental damage came about. To avoid sanctions, sometimes companies go above and beyond to ensure that they hide any environmental damage, like the Volkswagen emissions scandal in 2015 [9]. The precautionary principle is too challenging to apply, in many cases decision makers are going to be faced with the decision between a potentially ethical environmental choice, over societal and economic development. Until there is a wider understanding that simultaneously addresses the environment with societal and economic considerations, society and the economy are the fundamentals of a more resilient, sustainable future, and as such economic pursuits will always take priority [10]. With this in mind, increased liability and sanctions on top of the precautionary principle could also help to improve its application.   

References:
[1] LexisNexis, Sierra Club V Morton, https://www.lexisnexis.com/community/casebrief/p/casebrief-sierra-club-v-morton, accessed on 19th June 2023.
[2] United Nations, https://www.un.org/en/conferences/environment/stockholm1972, accessed on 19th June 2023.
[3] Legislation.gov, https://www.legislation.gov.uk/ukpga/1989/14#:~:text=An%20Act%20to%20provide%20for,used%20for%20illegal%20waste%20disposal accessed 19th June 2023.
[4] Legislation.gov, https://www.legislation.gov.uk/ukpga/2008/27/contents, accessed 19th June 2023.
[5] UN General Assembly, Report of the United Nations Conference on Environment and Development https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf accessed 19th June 2023.
[6] Legislation.gov, https://www.legislation.gov.uk/uksi/2015/810/contents accessed 21/08/2023.
[7] Legislation.gov, https://www.legislation.gov.uk/uksi/2015/810/contents accessed 21/08/2023.
[8] Legislation.gov,  https://www.legislation.gov.uk/uksi/2015/596/contents/made accessed 21/08/2023.
[9]Gwyn Topham, The Volkswagen Emissions Scandal Explained, The Guardian, https://www.theguardian.com/business/ng-interactive/2015/sep/23/volkswagen-emissions-scandal-explained-diesel-cars, accessed on 19th June 2023.
[10] P,F, Riccy & J, Zhang, 2013, Benefits and Limitations of the Precautionary Principle, Encyclopedia of Environmental Health page 276-285 https://www.sciencedirect.com/topics/earth-and-planetary-sciences/precautionary-principle#:~:text=Benefits%20and%20Limitations%20of%20the%20Precautionary%20Principle&text=Fundamentally%2C%20the%20dilemma%20is%20that,do%20more%20harm%20than%20good.