Environmental Law 2021

The new Environmental Law 2021 guide features 19 jurisdictions. The guide provides the latest legal information on environmental incidents, permits and damage; corporate, personal, lender and civil liability; climate change and emissions trading; asbestos; waste; environmental disclosure and information; environmental due diligence; and taxation.

Last Updated: November 30, 2021


Author



McMahon DeGulis LLP was founded in 1994, and is the largest law firm in Ohio to concentrate its practice exclusively on environmental law. MD offers a value-driven alternative to large firm environmental law departments by providing experienced legal representation in environmental law, energy, toxic torts and litigation. Specific areas of focus include environmental contamination and remediation strategies, regulatory counselling and permitting, enforcement defence, transactional support, environmental management systems, compliance auditing and litigation. On the private sector side, clients range from Fortune 500 companies to small businesses; on the public sector side, the firm represents state, regional and local governments as well as other institutions such as port authorities.


Global Overview

Contemporary environmental problems are predominantly global in their cumulative consequences. Traditional transboundary issues of water management and air pollution, increased demand and decreased supply, and a continued decline in biodiversity have an enormous impact on our highly interdependent world economy and remain the principal drivers of global environmental policy and regulation. This introduction considers some of the main trends and themes in international environmental law and how these might influence its future development.

Climate Change

The future of international environmental law will continue to be framed by the complexity of the interlinked environmental, social and economic challenges now confronting decision-makers. Deemed the most critical, climate change continues to be the predominant driver of current global environmental policy. Record high temperatures, polar ice loss, wildfires and droughts continue to worsen, affecting communities, nations and economies around the world. In 2021, catastrophic flooding due to record-breaking heavy rainfall in Western Europe, Australia, China, India and the USA caused significant damage to infrastructure, agriculture and electrical grids.

Climate change continues to be a critical business issue. Efforts to reduce carbon emissions continue to drive development of renewable technologies. Globally, carbon mitigation techniques include waste-to-energy, improved management of manure and herds, and fluorinated gas substitution. Market shifts continue to favour lower-carbon products and services. However, the main driver of fossil fuel consumption and reduction is energy security and independence. Corporations are focused on implementing environmental, social and governance (ESG), carbon reporting and management of their global carbon footprint and extended supply chains.

Industries that will continue to bear the brunt of regulations include oil and gas, real estate, automotive and transport, power generation, and agriculture. Decarbonisation efforts – the most visible response to climate change concerns as the world shifts to low-carbon and renewable energy and energy efficiency across all sectors – will deeply impact heavy transportation, heavy industry and construction. Climate-risk management extends into the financial sector as well, particularly as corporations respond to stakeholder demands for ESG strategies.

Among recent actions undertaken by nations, China introduced a carbon emission trading scheme based on a flexible emissions cap which is now the world’s largest emissions trading market. The initial participants are primarily power plants but it is anticipated to include the petrochemical, chemical, building materials (including cement, steel, non-ferrous metals), pulp and paper, and aviation sectors as well.

The UK Emissions Trading Scheme (UK ETS) replaced the UK's participation in the EU ETS on 1 January 2021. The European Commission introduced a Carbon Border Adjusted Mechanism to mitigate emissions associated with international trade.

Hong Kong announced the next steps to advance its green and sustainable finance strategy – in particular, climate-related disclosures and sustainability reporting, carbon market opportunities and the launch of the new Centre for Green and Sustainable Finance. Brazil committed to increase funding for environmental enforcement and to end deforestation by 2030. Given the interconnectivity of the global economy, these actions will have global repercussions.

The 26th UN Climate Change Conference of the Parties (COP26) ended with an agreement of the parties to “phase down” rather than fully “phase out” usage of coal, the single biggest contributor to climate change. Countries will reconvene next year to pledge further cuts to CO₂ in an effort to keep 1.5°C within reach. Tougher pollution policies should follow. Rules for the global trading of carbon offset credits were agreed upon, emphasising the importance of financial markets and investment in carbon reduction efforts. The Global Methane Pledge – an EU/USA initiative, signed up to by more than 100 countries – aims to cut emissions of the greenhouse gas methane by 30% by 2030, compared with 2020 levels. Importantly, the USA and China committed to further co-operation, which will drive environmental regulations in both nations going forward.

Global Water Crisis

The single largest issue beyond climate change is water stress – the availability, access and quality of water. At the highest level, water supply, sanitation and hygiene are the most critical issues faced by developed and developing nations alike. Over-exploitation of water resources, insufficient access to safe drinking water and water scarcity, water pollution and ageing water infrastructure systems across developed nations reflect ever-growing global pressures on this vital resource. Water availability contributes to food insecurity.

In June 2020, the UN launched the SD6 Global Acceleration Framework to unify the implementation of regulations as the world seeks to achieve Sustainable Development Goal 6 of the 2030 Agenda for Sustainable Development, ensuring the availability and sustainability of water and sanitation for all by 2030.

Water availability remains a major economic driver as corporations consider potential constraints on new locations due to water scarcity, possible operational and supply chain disruptions, and increasing costs of water. New markets will also develop for water-efficient technologies, from water recycling and reuse technologies to desalination products and waste water treatment technologies, from heat-pumps to anaerobic digestion and incineration. There is a continued focus on the development of technologies for watershed, utility, consumer and industrial water-use.

Pollution Reduction

Ongoing reduction of pollution in air, water and waste management is a constant theme of environmental law internationally. Rapid urbanisation and industrialisation bring new challenges for developing countries. This perspective could have significant implications for the future direction of environmental law, because it directly addresses environmental impacts on the life, health, private life and property of individual humans, rather than on other states or the environment in general.

In 2021, China issued Regulations on Management of Pollutant Discharge Permits with compliance obligations for enterprises with operations in China that discharge pollutants in the form of air emissions, water discharges or wastes. 

Biodiversity

The loss of biodiversity and the degradation of the ecosystem is seen as an increasingly significant issue internationally. In the past, discussions on biodiversity have focused on specifics such as coral reef degradation, deforestation or declining fish stocks. More recently, the wider importance of biodiversity and ecosystems, including to businesses, and the potentially profound consequences of their loss have been recognised. Natural resource depletion and adverse impacts of environmental degradation, including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges which humanity faces. Look to see a push to strengthen rulemaking on illegal trade in wildlife and exploitation of natural resources.

The loss of biodiversity and impairment of the ecosystem exacerbates and amplifies other environmental risks. For example, the removal of key coastal ecosystems often increases the severity of coastal flooding, ecosystem degradation has been a key driver of desertification, and food security is highly dependent on biologically diverse soils and other key ecosystem services such as water regulation, pollination and climatic stability.

The UN 2030 Agenda for Sustainable Development provides for the cessation of biodiversity loss as a measurable goal. Specifically, it seeks to take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2030, protect and prevent the extinction of threatened species. This also includes provisions to protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation.

Increased market, reputational and regulatory pressure to reduce biodiversity presents both business risks and opportunities. There are physical risks to business arising from scarcity and increased costs of resources and potentially reduced productivity. Companies may also face increased litigation risks as a result of their exploitation of biological resources or their adverse impacts on ecosystems.

COVID-19

The world continues to grapple with the COVID-19 crisis, including the impact on the environment. Human-wildlife interactions, single-use plastics, increased health risks of air pollution, and continued impact on economic resources can potentially be subject to further rulemaking and policy decisions.

Testing kits, protective equipment – including the packaging and delivery of these supplies – have increased the production of single-use plastics, making medical, household and hazardous waste management and sanitation infrastructure an increasing focus.

COVID-19 has also created unexpected operational and supply chain disruptions. We can expect to see further developments as industry and corporations react to these challenges, while also facing an increase in ESG reporting requirements.

Author



McMahon DeGulis LLP was founded in 1994, and is the largest law firm in Ohio to concentrate its practice exclusively on environmental law. MD offers a value-driven alternative to large firm environmental law departments by providing experienced legal representation in environmental law, energy, toxic torts and litigation. Specific areas of focus include environmental contamination and remediation strategies, regulatory counselling and permitting, enforcement defence, transactional support, environmental management systems, compliance auditing and litigation. On the private sector side, clients range from Fortune 500 companies to small businesses; on the public sector side, the firm represents state, regional and local governments as well as other institutions such as port authorities.