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The Tagus estuary near Lisbon is Portugal’s largest wetland, a vital habitat and stopover for tens of thousands of migratory birds, including flamingos, black-tailed godwits and glossy ibis. It has been designated as the site for a new airport by the environmental charity. ClientEarth and a group of Portuguese NGOs to sue Portugal’s government. They will argue that the authorities failed properly to consider how the project would impact an internationally protected natural reserve and the knock-on effect on other countries visited regularly by the birds.
“If you destroy that site, you have an impact not only in Lisbon, but on all the sites up the flyway,” says Anna Heslop, head of wildlife and habitats at ClientEarth. “If the bird populations don’t arrive, they never get breeding.”
While environmental lawsuits are not a new phenomenon – the earliest known case, a dispute over water resources, Dates back to 4,500 Years – campaigners are thinking more deeply about how they can tackle the complex problem of modern biodiversity loss.
Heslop said that litigants are now looking beyond a specific site or narrow issue. “Those older school cases will continue. We want to have a greater impact on the whole, such as every site in Europe and south-east Asia. Or to push governments to be more ambitious. The trick for us is finding cases that will have a more strategic impact; I don’t think that was happening on the same scale before.”
Partly, the lack of a strategy is a reflection on a larger understanding of the scale. The global biodiversityHeslop says crisis. “Climate change advocates have done a great job over the last 10, 20 years, of making people realise this is a massive issue and therefore they get more of the resources,” says Heslop. “But they’re twin and equal crises and if you fix climate change and not biodiversity, we’re all screwed.”
Guillaume Futhazar, senior research fellow at Max Planck Institute for Comparative Public Law, and International Law, is part a team that has been studying biodiversity lawsuits around the world and is publishing an article on their findings. Although they knew it was important, it wasn’t getting the same attention as other issues. An increasing number of lawsuitsThe climate crisis.
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How are climate and biodiversity crises related?
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Our biosphere – the thin film of life on the surface of our planet – is being destabilised by temperature change. Extreme weather events have become more common. FloodingSea level rises, droughts, and storms all have an impact on biodiversity and its ability support us. The ocean is under stress from heatwaves, acidification and habitat fragmentation.
The Intergovernmental Panel on Climate Change (IPCC), a landmark intergovernmental panel, was established in 1992. Report showed that extreme heatwaves that would usually happen every 50 years are already happening every decade. These extreme heatwaves will only occur once every five years if global warming is kept at 1.5C.
The effect of the climate crisis on the Earth’s biodiversity is already being seen. The distributions of 47% of land-based flightless mammals and almost a quarter of threatened birds may already have been negatively affected by the climate crisis, the IPBES (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services) Warns. Five per cent are at risk of extinction as a result of 2C heating, rising to 16% with an increase of 4.3C.
Scientists are increasingly arguing that the Climate and biodiversity crises can be linked. The destruction of the planet’s carbon-rich habitats, such as peatlands, forests, wetlands and grasslands, is damaging biodiversity and releasing vast amounts of greenhouse gases.
If 15% of the world’s most degraded land was restored, and the remaining habitats which are still in good condition protected, it could store a third of all greenhouse gas emissions created by humans since the Industrial Revolution, according to Researchers.
Futhazar points out that laws governing different aspects of biodiversity such as clean water and land use are well-established in many countries. He says lawyers can choose and structure cases more carefully because they have a better understanding and appreciation of the ecosystem dynamics, the increasingly central role played by science in lawsuits, and a greater awareness of the systemic nature and complexity of the problem.
Earthjustice, a US NGO founded in 1971, is not new to environmental lawsuits. But, last summer, it launched a new initiative “laser-focused” on using the law to address major drivers of the biodiversity crisis.
Timothy Preso, managing attorney of the organisation’s new Program for biodiversity protectionIt says it wants to work with groups whose voices are ignored in environmental litigation, such indigenous and frontline communities, and raise awareness about critical biodiversity issues.
The first case brought under the Project was for the Ojibwe tribes of Wisconsin, challenging the state’s wolf hunting plans on the grounds that they conflict with treaties negotiated in the 19th century. “It raises really critical questions about wildlife management from the perspective of peoples who have been stewards of the environment in Wisconsin for about 15,000 years,” says Preso. “It’s a different approach to those issues.”
Biodiversity campaigners are also learning from the success of climate litigation, which, Futhazar says, has “initiated a new creative way of thinking about how to deal with the environment”.
Zaneta Sedilekova, a lawyer at Clyde & Co, thinks biodiversity litigation will go through a similar arc to its climate counterpart, with campaigners targeting countries first and then companies.
Because of its importance, she believes that pollination is at the forefront of such cases. Food security, “an issue that Covid has really highlighted”. In 2019, Costa Rica’s supreme court ordered the country’s agriculture ministry to undertake a scientific study into the ecosystem impacts of neonicotinoids, while legal action has more recently be threatenedFrench government is being held responsible for failing to enforce strong regulations to reduce the use bee-harming pesticides.
Just as the The fossil fuel industryIt is now in Direct sight of climate litigantsThe private sector is also being targeted by biodiversity campaigners. Last year, indigenous peoples of the Brazilian and Colombian Amazons were displaced by NGOs and NGOs. Filled a lawsuitGroupe Casino, a French supermarket chain, was accused of selling beef products that were linked to deforestation. Casino argued it took a “rigorous” approach to its supply chains.
Heslop believes there will be more corporate liability cases in relation to biodiversity. “The traditional way of telling companies that they were doing the wrong thing environmentally was to convince them that they needed to have some corporate social responsibility,” she says. “But the approach we’ve now taken is to say, well actually you have a duty to your investors and they will be let down if you do this because you’ll end up with a stranded asset or you’ll be sued. We’ve made that narrative for climate and we’re currently looking at how those sorts of cases could be applied for biodiversity.”
Just as Attribution scienceSedilekova states that it allows climate campaigners and climate activists to link the emission of greenhouse gases with the harms resulting from subsequent global warming. Growing requirementsCompanies need to be Transparency in their supply chainCompanies will be held accountable if they fail to draw a clear line between biodiversity loss and product development.
She adds that the “corporate veil” that has historically shielded parent companies from action against their subsidiaries is More and more being lifted. “The more supply chain data we have, the easier it will be to trace that ecosystem damage to a jurisdiction which has fast and efficient judicial service or judicial provision which is not corrupted, and where the defendant has a lot of money.”
Sedilekova admits that it is still difficult for businesses to accept that biodiversity litigation is a serious risk, but she argues that it could be an effective tool to change corporate behavior. “The importance of litigation is to not turn one ship around, but to set a precedent so that others don’t wait for it to happen to them.”
ClientEarth asserts that the Tagus estuary case breaches EU law and could have disastrous effects on migratory bird populations. Heslop hopes the case will have more impact and could be a precedent in protecting other species around world. “Not just birds, but maybe dolphins or whales or others. That’s where what feels like a very local issue actually could have a huge impact if we’re successful,” she says.
Learn more Here is the coverage on age of extinctionFollow biodiversity reporters Phoebe WestonAnd Patrick GreenfieldFollow us on Twitter to get the most recent news and features
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