We already have the laws to save nature – let’s start using them
By Dr Jacob Phelps
Executive Director of Conservation-Litigation.org
Early in my career, I was in South Africa at an IUCN workshop that was attended by a major donor – we all had our eyes on them, hoping they might fund our work. Having successfully cornered them during a coffee break, I made my pitch for support, describing our plan to improve several key environmental policies.
“We don’t need more new laws,” she said. “We’ve been funding environmentalists for over 30 years, and they all tell us that we need to strengthen legislation. What I want to know is: Why aren’t we using the legislation we already have?”
Dejected, I thanked her for her time.
But she wasn’t wrong. Around the world we have volumes of great environmental legislation – on paper. There are many ways that these could be tightened, and many reasons for why they aren’t consistently or meaningfully used. However, far too often our proposed solution to the non-implementation of legislation is… to create more legislation.
I now share that donor’s frustration. Revising legislation, expanding rights and writing policy papers can be helpful in the right contexts – yet it often leaves us with the same problem. Writing new laws cannot substitute the arduous work of putting those laws into action.
Creating more legislation risks creating the illusion of progress without necessarily making progress.
When it comes to environmental legislation to protect nature and to help remedy it when it's harmed, I continue to be surprised at how many legal rights already exist. In our analyses of environmental liability legislation across the world, we are finding expansive liability provisions that have the power to deliver real change for nature – including laws that allow people to represent nature’s interests in court, that can order environmental offenders to restore nature, and that recognise the diverse values people hold for nature.
What we find far less of in most countries is evidence of widespread action to implement those legal rights. That is why we’ve made an active decision to focus less on writing new legislation, and more on figuring out how we can operationalise the ones we already have.
This includes work to:
Strategise on how to most effectively use existing laws
Provide support to government, NGO and community plaintiffs to test and experiment with their exiting laws
Train lawyers and scientists on how to develop claims for nature when it is harmed
Work with judges to understand how complex environmental cases should be adjudicated
The lessons we are learning highlight opportunities to operationalise a range of legal actions. These include vital insights for emerging ‘Ecocide’ and ‘Rights of Nature’ movements, which seek to better protect nature and expand legal recognition for nature’s inherent rates – and which face the same non-implementation risks we see for existing liability legislation.
There is no single approach to strengthening environmental governance, but no matter how many laws we create, they will only have meaning if we invest greater effort into figuring out how to put them into practice.