Written by Mahnoor Fatima – member of Pro Bono
In simplest terms, biodiversity comprises the diversity of the ecosystem, species and their genetics and theirdestruction reduce the capability of nature to regulate emissions, therefore, leading to climate change. The fabric of biodiversity, which functions as Earth’s insurance policy – is the safety net guarding our survival. It is crucial to protect it.
The Law Society has recently urged a green resolution: for lawyers to engage in climate-conscious legal practice[1]. Through research and litigation, biodiversity loss can be tackled. There have been legal changes implemented such as new laws in The Environment Act 2021(‘TEA 2021’)2. The introduction of TEA 2021 emphasises the need for greener supply chains, which calls for increased due diligence requirements on businesses. Lawyers can aid in this by constructing due diligence policies for clients by inserting ‘green clauses’ in supplier contracts. These clauses can require a net-zero standard for their suppliers; this is a double benefit as it remedies the suppliers’ environmental policies while the clients meet their own net-zero targets by reducing their scope 3 emissions2.
Additionally, lawyers may advise clients to update contracts with their suppliers via incentive-based models. This entails providing incentives if the suppliers go above and beyond the sustainability goal standards stated2. Furthermore, late payment mechanisms may be utilised to support off-setting, and execution protocols may be established, by which lawyers and clients may agree on the terms before the start of the execution, minimising the overall carbon footprint of deal execution2.
Another important factor to consider is Biodiversity Net Gain (‘BNG’). Schedule 14 of TEA may have potentially monumental implications for developers – this makes a provision for a 10% BNG to be a condition of England’s planning permission[2]. Lawyers may support their developer clientele by assessing plans for BNG to ensure they comply with this legislation. Elaborating on the role of BNG in legal hemispheres, BNG is in the works of becoming an obligation for all planning applications in England from November 2023 and for Development Consent Orders from November 2025[3]. Lawyers will play a role in advising clients such as consultants and developers on acquiring lands, upgrading it and adding to the biodiversity gain register3.
An interesting idea would be for lawyers to develop partnerships with habitat banks and urge developer clients to buy land from them by offering reduced price deals. This would be a double benefit to firms as they would save costs, have more clients and clients would be mutually satisfied as habitat banks such as the Environmental Bank are better equipped to manage BNG obligation risks.
In conclusion, lawyers may become a vessel for biodiversity hope by assisting in generating green policies, planning for future compliance and finding clients' opportunities including around the new market in biodiversity units. The goal lawyers should keep in mind is that they must change their lens –they should design contracts with a healthy respect for nature and our place right beside it. Lawyers are, after all, agents of change.
[1] Gazette Reporter, ‘Law Society Unveils Climate Resolution’ The Law Society Gazette (London, 28 October 2021) [2] Natalie Barbosa, ‘Helping Clients Tackle Climate Change Through Biodiversity’ (Lawyer Monthly, 31 January 2022) <https://www.lawyer-monthly.com/2022/01/helping-clients-tackle-climate-change-through-biodiversity/> accessed 25 August 2022 [3] Angus Walker, ‘Biodiversity Net Gain Lawyers’ (BDB Pitmans, 22 April 2022)<https://www.bdbpitmans.com/expertise/sectors/biodiversity-net-gain-law/> accessed 26 August 2022
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