Opinion. Environmental law in the age of climate chaos and biodiversity collapse
Environmental law in the age of climate chaos and biodiversity collapse
Emma Montlake
(This paper can be downloaded as a pdf here).
Key points
We are living through a climate change and biodiversity collapse;
This impacts adversely on humans, but also violates the Rights of Nature;
Environmental law provides extensive protection for nature, though often ineffective;
The rules are changing and hotly debated - mechanisms for challenging bad decisions are under threat;
The Planning and Infrastructure Bill rightly emphasises the need for more housing and for critical infrastructure – but will lead to the weakening of local control, the loss of opportunities for judicial review, and the weakening of site specific protection of the environment, with only a poorly-defined Nature Restoration Fund;
The P and I Bill has completed all it stages in the House of Commons, but can still be amended in the House of Lords.
The climate change and biodiversity collapse
Anyone who, like me, grew up in the 70s and took even a modicum of interest in the natural world, will have observed the catastrophic loss of our native flora and fauna. When I was growing up in suburban Surrey, we had a pair of spotted fly catchers who came and nested ever year in our ivy; my mother chased the bull finches away from our fruit trees. I have seen neither of these birds for decades. When I first moved to Lewes 13 years ago, I became the Rose Chaffer spotter, reporting my sightings to Sussex Wildlife Trust. This is a gorgeous beetle, and Lewes a stronghold. This year I have not seen a single one. My children’s experience of nature is not mine. I can only speak of loss. We call this shifting baselines. Our children think it is normal to exist without nature. We are truly in a biodiversity and climate crisis.
Kent Wildlife Trust estimate that we have lost 78% of our insects in 20 years. The Natural History Museum estimate that 73 million birds have gone from our landscapes in 50 years. It is no surprise that the UK is now recognised as one of the most nature depleted counties in the world.
This is a tragedy because local nature and green space are vital to us. Humans are part of nature, not separate from it, and as such it is no surprise that all the evidence confirms how important it is to us and our wellbeing. Illustrative of this , a recent study put access to green space as fundamental to a child’s bone development.
The rights of nature
In addition, though, nature is entitled to rights on its own account. The Rights of Nature movement is finding traction all over the world. It borrows from indigenous and first nation communities, who have never lost an understanding of their place in nature, that land and nature is kin, and relational to their communities.
Rights of nature codifies in law the understanding that nature also has a right to exist, thrive and flourish. Ecuador was the first country in the world to codify rights of nature in their new constitution in 2008. Since then, there have been over 500 new local and national laws globally that have embedded rights of nature into decision making. Bangladesh has declared that all its rivers have rights. More locally, here in Lewes, the District Council has recently agreed to support and champion the Ouse River Charter. We wait to see how that declaration unfolds but we see opportunities for local policy and decision-making that supports the principles of the charter towards restoration of the river’s health. And where one leads another follows, as the Basingstoke and Deane Borough Council recently passed a motion to similarly declare a river charter.
The role of environmental law
In the UK, we have many environmental laws and regulations; most people do not know the extent to which environmental law plays a role in in their lives.
When development is proposed, approved and undertaken, environmental laws and regulations should be central to how the development proceeds. Many decisions taken by public bodies will have an environmental impact, and it is necessary to understand what that impact is likely to be, try to account for it, and, more often, simply mitigate the harm to the environment that will ensue. Weighing up and balancing harms is a function of the planning system, the public interest being paramount. Housing and its benefits, for example, often outweigh harms to the environment. In England, the National Planning Policy Framework is pivotal and sets out how the government's planning policies should be applied; it requires a ‘presumption in favour of sustainable development’. In other words, development is the overriding objective, subject to sustainable development criteria, including environmental considerations. We have recently had changes to the NPPF: a key policy will see swathes of green belt redesignated as grey belt, opening up land for housing development.
It was hoped that the introduction of the principle of Biodiversity Net Gain would lead the realignment of nature’s importance in development. This is a new requirement under the Environment Act 2021, that requires development to build in an uplift of 10% to biodiversity, from the baseline at which the nature value is assessed pre-development. However, there are problems with it already, the main one being that developers do not like it.
When a planning application is submitted, a range of environmental assessments is required, depending on size and scope. For example, if there are trees to be felled, a tree report is required; trees can have protections known as Tree Preservation Orders, and are a material consideration in any planning application. If there are known to be protected species such as bats, reptiles or red data list birds, up to date species surveys are required. Wild animals are protected under the Wildlife and Countryside Act 1981, a seminal piece of legislation. Additionally, for example, bats are a European Protected Species. and if it is assessed that there will be impacts on bats, then mitigating measures will be required. The ‘HS2 bat tunnel’, is much-cited, but extremely unusual and probably unique. More usual, are a couple of bat boxes to mitigate against roosting and foraging loss.
There may also be a need for an Environmental Impact Assessment (an EIA), depending on the nature of the proposed development. For example, an EIA is always required for proposals such as an oil refinery or a nuclear power station. However, other operations are more nuanced and must be assessed against the nature sensitivity of the site. An EIA is a comprehensive report, looking at all the individual environmental impacts, including a requirement that an Environmental Statement be provided, a chapter that brings together all the conclusions of the various reports. Developers do not like having to carry out EIAs, and have been lobbying hard against them; they are expensive. Against this backdrop, changes are being proposed. Environmental Outcome Reports are the latest proposed changes to the EIA. They are universally derided by those who have any concern about the ongoing and drastic decline of nature in the UK.
If a decision is made by a public body about which there are significant concerns, members of the public might look to challenge that decision. Judicial Review is a legal mechanism developed by the courts that enables Judges to scrutinise decisions made by public bodies to determine whether those decisions are in fact lawful. Statutory Review is a similar legal mechanism that deals with decisions by Planning Inspectors as proxy for the Secretary of State.
Environmental litigation in practice – the work of the Environment Law Foundation
The Environmental Law Foundation is a national charity that assists grassroots communities to access free legal advice where there are environmental and public interest concerns. Helping to define this work is an international convention, the Aarhus Convention (AC), to which both the UK and the EU are signatories. The three pillars of the AC are that access to justice should not be prohibitively expensive, that the public should have the right to participate in environmental decision making, and that the public should have access to environmental information.
Many of the enquiries that ELF receives relate to land development: from proposed housing estates to large infrastructure projects (Nationally Significant Infrastructure Projects), like that being promoted by National Grid, on the Kent coast, Sealink. All of these proposals will have environmental impacts, some far greater than others, according to the nature of the development and the nature sensitivity of the site and surrounding area.
Whilst acknowledging that we need more homes to alleviate the plight of our young people and those failed by the housing system, nature and green space should be the first thing developers think of when contemplating development, not the last.
Examples of how judicial processes can be used to protect nature are given in Boxes 1 (Cuckmere Cottages) and 2 (Northumberland quarry).
Box 1
Cuckmere cottages
Box 2
Northumberland quarry
It is important to note that the Aarhus Costs Rules that have been important in limiting the exposure to adverse costs in environmental law challenges. Given our litigation norm in the UK, that the loser pays the other side’s costs, a claimant can be significantly exposed if they lose their claim. Being a signatory to the AC, this created a tension with the first pillar, that access to justice should not be prohibitively expensive. This has given rise to the Aarhus Costs Rules, court rules that limit the amount a loser of a claim pays in environmental cases.
The rules are changing – and are hotly debated
The rules are changing, however. At the heart of the matter are the National Planning Policy Framework, published in December 2024, and the Planning and Infrastructure Bill, which was introduced in March 2025, and completed its progress through the House of Commons on 10 June.
The Planning Policy Framework ‘provides a framework within which locally-prepared plans can provide for housing and other development in a sustainable manner’. It includes an environmental objective which is
‘to protect and enhance our natural, built and historic environment; including making effective use of land, improving biodiversity, using natural resources prudently, minimising waste and pollution, and mitigating and adapting to climate change, including moving to a low carbon economy’.
However, it also mandates a formal ‘presumption in favour of sustainable development’, with a focus on delivering a sufficient supply of homes’ and ‘significant weight (given to) the need to support economic growth and productivity’
The Planning and Infrastructure Bil expands on the framework, with significant changes to the legal and procedural status quo. As amended in Committee, it is now a 177 page document, which sets out changes designed to
‘speed up and streamline the delivery of new homes and critical infrastructure, supporting delivery of the government’s Plan for Change milestones of building 1.5 million safe and decent homes in England and fast-tracking 150 planning decisions on major economic infrastructure projects by the end of this Parliament. It will also support delivery of the government’s Clean Power 2030 target by ensuring that key clean energy projects are built as quickly as possible.’
Five key changes are:
Giving new responsibilities to high-level combined authorities to prepare and drive through Spatial Development Strategies;
Reducing the number of opportunities for legal challenge to proposed development, including via judicial review.
Strengthening the role of development corporations, including with respect to development on greenfield land;
Empowering Nature England to design and deliver an Environmental Delivery Plan covering multiple developments, rather than tackling environmental issues piecemeal; and
Enabling developers to compensate for environmental damage in specific places by paying into a general Nature Restoration Fund, in the process by-passing the Habitats Regulations .
All this has triggered a fierce debate.
On the one hand, Government insists that its Plan for Change can deliver a ‘win-win for development and our environment’, despite favouring ‘builders over blockers’ and not allowing bats and newts to stand in the way of infrastructure and housing.
On the other hand, environmental interests have lined up to criticise Government proposals. The Office of Environmental Protection has said that the Government’s proposals ‘would have the effect of reducing the level of environmental protection provided for by existing environmental law. As drafted, the provisions are a regression.’ The Guardian has claimed that ‘5,000 English nature sites (are) at risk under Labour’s planning proposals’. And 32 NGOs wrote to the Government in April 2025, arguing that Government action ‘would weaken environmental law, risk local species extinction and irreversible habitat loss, and jeopardise delivery of the Government’s legally binding Environment Act targets.’
Critics have focused particularly on the weakening of local control, the loss of opportunities for judicial review, and the weakening of site specific protection of the environment, with only a poorly-defined Nature Restoration Fund.
The Government claims that reporting on the new Planning and Infrastructure Bill has been ‘inaccurate’, and that ‘The . . . Bill will maintain the existing legal and policy protections, while delivering a more strategic approach to improve the environment – and ultimately deliver more for nature not less’.
Conclusion
The Planning and Infrastructure Bill has now passed to the House of Lords. Amendments are still possible.
If the critics are right, we have work to do, acting as guardians of our natural world for whom it is incumbent upon us to speak up.
As Robert MacFarlane observed, at a recent event to discuss his book, Is a River Alive?, ‘Despair is a luxury’.
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Emma Montlake is Co-Director of the Environmental Law Foundation.
Perspective pieces are the responsibility of the authors, and do not commit Climate:Change in any way.