Environmental Law 2023

Global Overview

From the war in Ukraine to the agonising conflict in the Middle East (to mention but a couple of recent examples), 2023 has witnessed significant global disruption, conflict and humanitarian catastrophes, often referred to as a time of poly-crises. Cataclysmic environmental events fuel and serve to aggravate the many flashpoints across the globe and create further socio-economic, political and structural instability, food and water shortages, and humanitarian disasters. ESG remains an integral element of corporate and investment strategy.

“Carbonomics” is increasingly at the forefront of the global agenda. The need to consider the social impact and economic cost of the green transition is enshrined in the International Labour Organization’s Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All (2015), the Paris Agreement 2015 and the Silesia Declaration on the Solidarity and Just Transition 2018. In addition to other international agreements and guidelines, the Sustainable Development Goals that underpin the United Nations’ 2030 Agenda for Sustainable Development represent a global framework for environmental matters. A key topic of discussion during the 26th United Nations Climate Change Conference (COP26) and 27th United Nations Climate Change Conference (COP27) was the gap in green funding in developing countries.

The Asia–Pacific region represents countries such as China, India, Japan and Indonesia, with some of the most significant carbon emission metrics. In 2021, a report published by BP showed that coal and oil remain the main energy sources in the Asia–Pacific region.

In Europe, since 2018, the Non-Financial Reporting Directive (NFRD) has imposed an obligation on large European companies to report on the policies, outcomes, risks and key performance indicators relating to environmental, social and employee issues. The NFRD imposed a double materiality obligation that requires disclosure of sustainability-related risks to business and the impact of a company’s activities on society and the environment. In April 2021, the EC adopted a proposal for a Corporate Sustainability Reporting Directive (CSRD), which is intended to extend the scope of the NFRD to all SMEs. The CSRD is expected to come into force in 2024–25.

At the beginning of COP27 in November 2022 in Sharm El Sheikh, Egypt, Secretary-General of the United Nations Antonio Guterres observed that nation states must close the “ambition gap, the credibility gap and the solidarity gap” if the world is to achieve what needs to be achieved in terms of environmental sustainability goals before we are all doomed. Co-operation has scarcely been more essential and yet is perhaps more elusive than ever. Trust deficit continues to undermine global and national environmental initiatives.

While the various workstreams undertaken by the COP task forces endeavour to produce a meaningful contribution to making the planet environmentally safer and more sustainable, significant challenges remain. These include the energy transition from fossil fuels to green energy, as well as cleaning up water supplies and allocating financial resources in an equitable manner to ensure a more sustainable environmental future and a socially just transition to net zero.

Environmental initiatives around the world aim to address various challenges and opportunities related to climate change, biodiversity loss, pollution, resource management, human rights, and sustainable development. However, the scope, effectiveness, and implementation of these initiatives varies widely depending on the legal, political, and socio-economic contexts of different jurisdictions.

Environmental law can no longer be seen as another niche area of the law and the bailiwick of lawyers, academics, environmental activists and politicians seeking electoral approval. Environmental law and policy should be seen as an integral part of every global, intergovernmental and national initiative, top down and bottom up. It is only through a concerted interdisciplinary effort that there is any hope of preserving and rebuilding what is left of the environment.

“Eco-anxiety”, “climate doom” and “environmental existential angst” have become mainstream buzzwords in certain parts of the world to communicate the existential threat posed by environmental decline. It is not all gloom and doom. As ever, there are reasons to be optimistic if one makes the effort to look for them and contribute to their survival. Renewable energy is being taken seriously in most jurisdictions.

Real efforts are underway to reduce dependency on fossil fuels and clean up the planet. By way of example, 98% of Norway’s electricity system is based on renewable energy sources. The Democratic Republic of Congo, Iceland, Paraguay, the Scandinavian countries ‒ and, to a lesser extent, the Baltic states ‒ lead the way in the transition to green energy while some countries (particularly in developing jurisdictions as well as fossil-fuel-producing nations) continue to look for a path towards a more equitable energy transition in conformity with their national and regional parameters.

In April 2023, US President Joe Biden unveiled a number of action points as part of America’s contribution to the Green New Deal. These include:

• decarbonising energy;
• ending deforestation of the Amazon and other critical rainforests;
• tackling non-CO₂ climate pollutants; and
• advancing climate management.

A few examples of global efforts to minimise environmental damage and strengthen environmental frameworks are discussed here. These are implemented differently by various jurisdictions but provide a shared vision that serves as a useful starting point.

United Nations Environment Assembly

The United Nations Environment Assembly (UNEA) is the world’s highest-level global standards-setting body concerning environmental matters. It reports directly into the United Nations General Assembly. All 193 United Nations member states are members of UNEA and contribute to meaningful discussions and initiatives on environmental matters. The next (sixth) session of the UNEA will be held from 26 February 2024 to 1 March 2024 at the United Nations Environmental Programme’s headquarters in Nairobi, Kenya, with the theme of effective, inclusive and sustainable multilateral actions to tackle climate change, biodiversity loss and pollution. The aim of this initiative is to restore harmony between humankind and nature so as to improve the lives of those most vulnerable to climate change.

United Nations Agenda for Sustainable Development

The United Nations Agenda for Sustainable Development 2030 is a universal and transformative vision that aims to achieve 17 interlinked goals and 169 targets ‒ spanning various economic, social, and environmental dimensions of development ‒ by fostering a global partnership that mobilises and aligns the actions and resources of all stakeholders.

United Nations Convention on Biological Diversity

The United Nations Convention on Biological Diversity, is a multilateral treaty with the objective of developing national strategies for the conservation and sustainable use of biological diversity. The Convention has been in force since 1993. The United States of America remains the only UN Member States which has not ratified the Convention.

International organisations’ focus on environmental matters

The World Bank, the International Monetary Fund, the Organisation for Economic Co-operation and Development and other international organisations are involved in environmental and climate initiatives to implement the Paris Agreement 2015, which aims to limit the global average temperature rise to well below 2°C above pre-industrial levels and to pursue efforts to limit it to 1.5°C by enhancing countries’ ambitions and actions to reduce their greenhouse gas emissions and adapt to the effects of climate change. The Paris Agreement 2015 also aims to mobilise and provide support for developing countries.

World Bank’s Environmental and Social Framework

The World Bank’s Environmental and Social Framework was approved by the Board of Executive Directors on 4 August 2016. It consists of:

• a vision for sustainable development;
• ten environmental and social standards setting out the requirements that apply to the World Bank’s borrowers;
• an environmental and social policy for investment project financing, which sets out the requirements that apply to the World Bank itself, as well as an environmental and social procedure for investment project financing; and
• a Directive on addressing risks and impacts on disadvantaged or vulnerable individuals or groups.

It applies to all investment project financings initiated on or after October 2018.

The World Bank’s Environmental and Social Framework places an emphasis on strengthening national environmental and social management systems and institutions, as well as supporting national capacity building.

EU Carbon Border Adjustment Mechanism

The EU’s Carbon Border Adjustment Mechanism (CBAM) is a tariff on carbon-intensive products imported by the EU ‒ for example, cement. It was introduced by the EU’s Green Deal in 2023, which comes into force in 2026.

Basel, Rotterdam and Stockholm Conventions

The Basel, Rotterdam and Stockholm Conventions, under the auspices of the United Nations’ environment programme, are multilateral environmental agreements with the shared objectives of protecting human health and the environment from the adverse effects of hazardous chemicals and waste. These interrelated global treaties aim to protect human health and the environment by regulating the production, trade, use, and disposal of hazardous chemicals and waste, as well as by promoting the exchange of information, the application of best practices, and the provision of assistance and co-operation among parties.

Integration of global policies with national agendas, objectives and practical realities

The degree of alignment and integration of environmental objectives and policies with national and sectoral priorities, such as economic growth, energy security, social justice and public health, remains a challenge for national governments ‒ as does the availability and allocation of resources, capacities, and incentives for environmental action and innovation. The availability of clean water, pollution reduction and biodiversity protection remain major challenges across the globe. While steps have been taken and continue to be taken to address these issues at global, regional and national levels, more needs to be done. Operational and supply chain difficulties continue to present real practical difficulties.

Environmental initiatives around the world reflect the urgency and complexity of the environmental challenges and opportunities that humanity faces in the 21st century, as well as the diversity and dynamism of the environmental law landscape that shapes and responds to them. While there are some common goals and principles that guide and inspire environmental action and co-operation, there are significant gaps and barriers that hinder environmental co-operation.

An integrated approach to environmental law and governance that balances the often competing ‒ if not conflicting ‒ interests of different stakeholders, protects the rights and responsibilities of different groups and communities, and adapts to the ever changing-environmental realities is called for. Co-operation and a sharper focus on the themes that unite instead of divide different interests are needed and should be at the top of everyone’s agenda ‒ not just for altruistic reasons but existential ones, too. The time for responsible, globally co-ordinated, legally enforceable environmental stewardship and results is now.