COVID 19: A Cautionary Tale of the Dangers of Unsustainable Food Production and Consumption

Picture jo and field
Joanna Miller Smallwood
Izabela
Izabela Delabre

In this post Dr Joanna Miller Smallwood (Sussex University ESRC/SENSS Post Doctoral Fellow and Non-Practising Solicitor) and Dr Izabela Delabre (Sussex University Business School Research Fellow and Sussex Sustainability Research Programme) highlight the relationship the current COVID-19 pandemic crisis has with unsustainable food production and consumption.

SARS-CoV-2 and links to biodiversity

2020 is a critical year for biodiversity and the current COVID-19 pandemic clearly highlights how inextricably linked human welfare and nature are. Preparations are in full swing to form a new global plan to tackle the alarming rate of biodiversity loss worldwide, the so-called “sixth mass extinction”. Most of the world’s states are preparing this year to agree on a new set of global targets to halt the ongoing decimation of the world’s biodiversity. So far, global biodiversity targets have largely been unmet, arguably failing to gain enough political or societal attention for sufficient action to be taken to bend the curve of biodiversity loss.  Aptly, the 2020 Convention on Biological Diversity (CBD) Conference of the Parties (COP) was scheduled to be held in Kunming, China in late autumn and the dawning of a new post-2020 strategic plan for biodiversity draws our attention back to reflect on the main drivers of biodiversity loss, including unsustainable food production and consumption patterns.

COVID-19 is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).  The SARS-CoV-2 pandemic is a tragic example of what can happen when social-ecological systems are disturbed, with detrimental consequences. The current food system, dependent on a model of industrialized farming practices to provide large quantities of cheap food for a growing global population, has devastating impacts on important wildlife habitats and biodiversity. The current pandemic could be a cautionary tale of things to come, depending on the lessons we take away from this global crisis.  Unless significant changes are made in production and consumption patterns, and changes to the fundamental nature of our relationship with non-human species, we should anticipate further pandemics and other catastrophes resulting from malfunctioning ecosystems.

As we struggle to come to terms with the current pandemic sweeping the globe, an opportunity is provided in our ‘isolation’ and ‘lock down’ for reflection on the way some of us (often as a result of political-economic systems) live.  The upshot of the capitalist system, which manifests on a global scale, results not only in inequalities in access to commodities such as food and water but in exposure to viruses, access to vaccines and health care.  Further, there are issues of inter-species inequalities, humans are just one species among so many on our amazing planet, yet our actions negatively affect other species. This is particularly visible in food production and consumption systems. Increasingly decadent lifestyles in high income countries and the perpetual drive of a global elite to have more and more, for less and less, is pushing the boundaries of our planet and threatening the nature of our and other species’ ‘safe operating space’, as planetary boundaries are transgressed and people and animals exploited.  At what cost do we place this incessant desire for more? We are playing for high stakes and risking not only the survival of countless non-human species but also our own species – including unequal impacts on the most vulnerable in our societies – as the current pandemic highlights.

The likely origins of SARS-CoV-2 is from Chinese ‘wet markets’ selling live and dead animals for human consumption.  SARS-CoV-2 is a zoonotic virus which can jump from the species it evolved with (wild animals), onto new hosts.  The pressures on land use, habitat destruction, as well as illegal trade in wildlife and climate change all lead to the increased spread of viruses such as SARS-CoV-2.  It is important to note, that SARS-CoV-2 is not the first, and most likely will not be the last such virus with the potential to form a pandemic.

The picture of why SARS-CoV-2 has emerged and is now thriving globally is much bigger.  The probable starting point of SAS-CoV-2 was in Wuhan, China where it arrived and spread to humans at the wet market in one of two ways: either through illegal trafficking of wild creatures, for their use as traditional medicine, food (or in some cases pets); or through legal trade in farmed ‘wild’ species.  In recent times, China has seen a huge change in its farming practices. Frequently through processes of land-grabbing, small scale farmers have become marginalised by huge industrialised farms (owned by large agribusinesses and often supported through foreign investment) to grow food for China and global markets.  As a result, smallholders have been driven to farm wild species, such as high-value pangolins, in order to make a living.  As small farmers have been pushed off the most productive land by industrialised farms, to the edge of forests to farm on uncultivated land, the natural evolution of viruses such as SARS-CoV-2 (and nearly two decades previously SARS-CoV) began by making the leap from one host to another (e.g. bat to pangolin). The virus was then transported to the wet markets, and there the second leap was made from non-human to human species.  However, as Morens et al point out, despite its origins in China this is a global concern not solely a ‘Chinese’ problem (as it has been referred to in populist discourse).

Global Production Patterns

In our drive to want more for less, the dominant use of factory farming has become a key way to provide cheap food at the expense of biodiversity, animal welfare and – as it has also become strikingly apparent – human welfare.   Intensively farmed animals of similar genetic makeup, living in very close proximity to each other provide a playground for zoonotic viruses where they can mutate and spread between each other, wild animals and humans, as has been seen not only with SARS -CoV-2 but also avian flu, including H7N9 and H5N1, and swine flu, H1N1.  In order to safeguard against future pandemics, it is paramount that efforts are made to curb the spread of flu viruses through intensive farming practices.

Industrialised farming is not only a concern of China but a hegemonic global concern and recognised by key international treaties such as the 1992 UN Convention for Biological Diversity (CBD) and high-level political agreements such as the 2015 Sustainable Development Goals (SDGs).  Both contain targets and goals which aim to push states towards sustainable food production and consumption patterns that account for the importance and value of biodiversity.  The push for agricultural expansion and intensification is one of the biggest threats to biodiversity globally due to habitat loss and the push for pesticide-dependent, industrial farming systems.

Worryingly, the recent IPBES global assessment shows that little or no progress has been made towards achieving sustainable consumption and production, largely due to the inordinate increase in demand for consumption. A key issue is governance and who is governed.  States are, to some extent, held responsible to fulfil global targets and pledges, but the industries that advertently or inadvertently, create the conditions leading to such pandemics are not held sufficiently accountable. Here, the political stance is that making cheap food at any cost is deemed more important than the healthy functioning of ecosystems or social responsibility. However, when these fundamental concerns are not added into the neoliberal capitalist equation, we really are playing with fire. This is evident in the context of zoonotic viruses as we are witnessing now and more broadly. As Rob Wallace states, ‘chicken isn’t cheap if it kills millions’.  In his book Big farms make big flu, Wallace argues that agribusinesses need to adopt sustainable production practices and be held to account for higher ecological, social and epidemiological sustainability. Changes in production and consumption patterns are also important in broader terms – the importance of nature (and the understanding that we are part of nature too!) needs to be fully taken on board and respected in political, economic and societal spheres in order to maintain a healthy, functioning planet.

Global Consumption Patterns

There is no doubt that many intensive production practices are clear drivers of biodiversity loss, ethically and morally challenging, and can lead to the creation and spread of harmful and constantly changing viruses such as SARS-CoV-2, SARS-Cov, H7N9, H5N1 and H1N1 to name but a few.  As well as holding large scale agribusiness, supply chains, and governments to account, there is a need – and opportunity – to reflect on our consumption patterns and how we are connected with food production.  While food access is highly uneven, overall global food consumption is rising as the world seeks to feed a rapidly growing population. Increasing wealth for many middle and low-income countries has led to a move away from traditional diets to growing meat consumption (see Figure 1).  Godfray et al. (2018) show that the average amount of meat consumed per person globally has nearly doubled in the past 50 years, from around 23kg in 1961 to 43kg in 2014, and middle-income countries, in particular China and others in east Asia, are seeing rapid rises.  A UN report predicts an increase in global meat consumption of 76% by mid-century. This raises serious questions as to how, or if, these gargantuan levels of meat consumption can be achieved in a sustainable or ethical manner that avoids the inherent risks of future spread of zoonotic viruses through farming practices. SARS-CoV-2 is by no means the worst that can be expected, the virus H7N9 kills a third of those infected.

Meat consumption

There are clear disparities and vast inequalities in food consumption globally.  Figures from the UN show that there are 2 billion overweight and obese people in the world, and in alarming contrast, 821 million people are hungry today and an additional 2 billion people expected to be undernourished by 2050.  In spite of this, and the goal to achieve zero hunger by 2050 across the planet, the planet simply cannot support a consumption model in which everyone eats the level of meat and animal products currently consumed in higher income countries. Our diets and consumption of food needs to be re-thought.

Inter-species respect

Chinese wet markets and other intensive farming practices raise serious animal welfare concerns which also reflect humans lack of connection with nature and understanding of non-human species.  Alasdair Cochrane, in his cutting edge book, Should Animals have Political Rights? stresses the need for animals to not only be protected from cruelty of individuals, but also from structures such as industrialised animal agriculture, that cause them harm.  He pushes further than solely the protection of animal rights but argues for their democratic representation, for example, through dedicated representatives in political decision-making fora.

Ingrid J. Visseren-Hamakers makes a strong case for an 18th Sustainable Development Goal (SDG) on animal health, welfare and rights and highlights the need to mainstream the consideration of the individual animal into our thinking on sustainable development, including in relation to sustainable food production and consumption. Visseren-Hamakers argues that:

“We cannot ignore the interests of billions of animals while developing sustainable food systems, enabling sustainable consumption and production, combatting and adapting to climate change, and rethinking our strategies for the conservation and sustainable and equitable use of biodiversity”.

Some may argue such notions are extreme, however we argue that the morality and sustainability of current political and societal patterns around food production and consumption are highly questionable and see the incorporation of animal rights as a basic prerequisite to sustainable development and the bare minimum that is needed. If the intrinsic value of non-human species is fully respected within political, economic and social systems then there would be multiple benefits to our species too, including a safeguard against future global pandemics.

 

The time is upon us to shift the trajectory of this tale, 2020 is a year in which important global decisions are being made by states, in preparation and during negotiations for a post- 2020 strategic plan for biodiversity.  Ambitions in relation to sustainable food production and consumption need to be bold and include sufficient means of accountability, in order to challenge increasingly industrialised farming practices on the grounds of sustainability, equity, public health, non-human health and welfare. Alongside government action, agribusinesses, supply chains and individuals need to play their part and re-think how food can be produced and consumed in a safer and fairer way.

 

 

Trends in Long-term Climate Laws

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In this post Anusha Witt (University of Sussex LLM Environmental Law alumna) discusses the emergence of long-term climate governance frameworks from jurisdictions across the globe which are often the locus for net-zero by 2050 commitments. She points to the evolution of net-zero by 2050 as a legal norm, and poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

               

Introduction

For decades the scientific community have sought to highlight that greenhouse gases (GhG) in the atmosphere as a result of human activity is leading to dangerous levels of warming. We have already reached 1°C and alarmingly climate scientists predict that we will reach 1.5°C between 2026 and 2040. To address this, we need to reduce GhG emissions to zero.

The Paris Agreement provides an international framework to respond to this, it calls on Parties to pursue efforts to limit warming to 1.5°C and sets a target achieve this by balancing emissions and removal of GhG from the atmosphere by the second half of this century – frequently interpreted to mean net-zero by 2050.

Given the non-binding nature of international climate law, domestic law provides a critical role in facilitating a transition to a low GhG economy. Long-term climate governance frameworks with similar key features have emerged from jurisdictions across the globe and are often the locus for net-zero by 2050 commitments. They play a critical function by putting a legal duty on States to manage the transition to a low GhG economy. Pointing to the evolution of net-zero by 2050 as a legal norm, this article poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

This question is particularly pertinent given how rapidly climate law is developing, the statistics are compelling, the number of climate change laws in major economies has grown from 40 in 1997 to almost 500 at the end of 2013. The likelihood of climate law being enacted increases with the amount of climate laws passed elsewhere. Knowing this trend this article aims to raise some thought-provoking questions on the governance frameworks we are seeing the commitment to net-zero nested in.

 

UK Climate Change Act

The United Kingdom (UK) became the architect of long-term climate governance frameworks, in 2008, when it enacted its Climate Change Act (UK CCA), aimed at crafting steady but ambitious economy wide decarbonisation, whilst allowing for flexibility. Policymakers are not restricted to making reductions in specified sectors, instead they have the flexibility to choose the most cost-effective path to emissions reductions.

Several features within the CCA combine to form a governance framework, including:

  • a legally binding long-term, scientifically informed greenhouse gas (GhG) emissions reduction target (recently updated to net-zero by 2050) and a mid-term 2020 target;
  • a system of ‘carbon budgeting’;
  • an independent expert advisory panel called the Climate Change Committee (CCC);
  • regular reporting and monitoring requirements facilitate compliance.

The carbon budgets are consecutive, and each cover a period of five years with the CCC advising on the limit for GhG emissions for each budget eleven years in advance. This creates a system of policy back casting, whereby policy decisions that are made today (to remain within the carbon budget) are consistent with reaching the long-term target. With each budget more ambitious than the last, the intention of the governance framework is to allow policymakers to chart a steady but progressive course towards the long-term target.

 

Other long-term climate governance frameworks

Since the advent of the UK CCA a proliferation of long-term climate governance frameworks with similar features to the CCA have been enacted in other jurisdictions. Notable examples include: France, Norway, Finland, Ireland, Sweden, Mexico, The Netherlands, Denmark and New Zealand, who have all enacted long-term climate governance legalisation with similar features to the CCA, while Spain, Australia, South Africa and Malaysia (among others) are in the process of developing similar legislation.

 

Comparing national frameworks

Climate Laws in Europe: Good Practices in net-zero management’, provides a comprehensive and up-to-date global picture of this rapidly evolving landscape. As the authors remind us ‘no two climate laws are the same, the frameworks tend to draw on a set of common elements, such as targets, planning, measures, monitoring, public participation and scientific advisory bodies.’

Each of these instruments have a long-term target, however the picture is varied. For the UK, France, Denmark and New Zealand, the target is net-zero by 2050. Both Sweden and Finland are even more ambitious having legislated for net-zero by 2045 and 2035 respectively. Whilst the draft laws in Spain and Australia both have net-zero commitments. Each of these instruments also have their own unique aspects.

Sweden’s Act adds fiscal responsibility to its governance framework through provisions to align climate policies and budgetary decisions and a climate report to be presented with the yearly budget bill.

Australia, with its high susceptibility to climate impacts, requires a climate change risk assessment to assess the current and future effects of climate change on the economy, society, agriculture, environment, and ecology, to identify the most significant risks based on their severity and to assess the need for a coordinated response. The assessment is to be carried out once every five years. The recent catastrophic bush fires serve as a reminder of why this provision is important for the safety of society and the economy. In Australia there was widespread public outrage that leaders in emergency services had repeatedly raised concerns that the bush fire season was bound to be far more severe than usual due to prolonged drought. However, these risk warnings were largely ignored. Assessing the need for a coordinated response to future risks is particularly pertinent given Australia’s federal system of government with different structures for emergency services across States and Territories. Given the transboundary nature of climate change, assessing the need for a coordinated response to climate induced risks seems particularly pertinent and has been a key ask of government in the aftermath of the fires.

The French ‘Energy Transition Law’ stemmed from a public debate around concerns with nuclear energy and has a strong provision for public consultation. The intent is to enable citizens to be key drivers of the transition. The importance of this cannot be underestimated, in France, we have seen citizens making their voices heard loudly and violently through the des gilets jaunes (yellow vest movement). The movement originated from concerns about rising fuel costs due to a fuel tax aimed at emissions reductions. The experience of France illustrates the importance in increasing public awareness of the reasons why transitioning is critical, ensuring the transition is inclusive and that all sectors of society (particular high emitting sectors and those already economically vulnerable) are included in decision making and planning. Ireland also has a social dimension to its Climate Action and Low Carbon Development Act 2015, which includes the concept of a just transition.

Both public participation and strong mechanisms to ensure a just transition are critical, particularly, given the current COVID-19 crisis. The global economic impact of COVID-19 remains to be seen, but it is clear it will exacerbate existing societal inequalities and it is from this shaky ground that we will need to craft economy wide decarbonisation.

 

International Climate Governance Frameworks

The EU framework

Recently, the European Union published its proposal for a Climate Law with a net-zero by 2050 commitment. The significance of the EU announcing its commitment to net-zero by 2050 cannot be understated, the EU are supporting the momentum behind net-zero and raising the bar of ambition globally before COP 26 (the 26th Conference of the Parties to be attended by countries that signed the United Nations Framework Convention on Climate Change – which the Paris Agreement complements and falls under). The EU has also adopted a long-term governance framework with similar key features to the aforementioned national climate laws and within which its net-zero commitment lies. The European Commission has extensive reporting and monitoring requirements one of which is to report on progress to the European Parliament, within six months of the global stocktake required under the Paris Agreement. Creating an additional layer of accountability in that poor performance may be seen as a reputational risk for the EU’s leadership image and reinforcing the legitimacy of the Paris Agreement by timing EU domestic decisions to international mechanisms. Interestingly, the EU adds another dimension to the framework by complementing it with the European Green Deal which adds an economic package to accompany the framework and support a just transition.

 

Paris Agreement

The Paris Agreement illustrates that borrowing of legal concepts between jurisdictions is not confined to horizontal diffusion between national jurisdictions, but we can also identify vertical diffusion between international law and national law.

The Paris Agreement exhibits similar features to the aforementioned climate governance frameworks:

  • It has a long-term goal (to keep the global temperature increase to well below 2°C and pursue efforts to keep it to 1.5°C) and encourages long-term action by calling on countries to produce long-term low GhG emission strategies by 2020.
  • It places an obligation on Parties to submit Nationally Determined Contributions (NDC), every five years in which Parties detail their GhG emissions reductions targets to contribute to meeting the temperature target. Like the UK CCA carbon budgets, Parties are expected to rachet up ambition with each NDC.
  • Lastly, the Paris Agreement is flexible in that it does not prescribe how nation states need to reach the long-term goal they are free to choose the most appropriate path for their context.

Whilst there are many factors that influenced the architecture of the Paris Agreement, there appear to be some clear similarities between long-term governance frameworks and the Agreement. If COP 26 goes ahead this year it will be a critical year for the Paris Agreement. We are five years on from its initial signing, countries’ initial pledges to meeting the temperature goal will be reviewed and countries are expected to raise the ambition of their NDCs.

 

Net-zero by 2050

An increasingly common feature of long-term climate governance frameworks is the provision for net-zero by 2050. Article 4.1 of the Paris Agreement is frequently interpreted as an objective to achieve net-zero emissions globally by 2050. Whilst, its legal root can be found in the Paris Agreement, it is no surprise net-zero  found its way into the agreement – it was conceived and documented by influential people in the world of climate diplomacy well before the negotiations began.

Despite this, the net-zero provision ended up being somewhat hidden in the Paris Agreement. Hidden, because it was one of the components Small Island States (among other proponents) had to compromise on in the negotiations. Instead of appearing explicitly as a net-zero by 2050 commitment it is phrased much more loosely:

‘In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.’

The interpretation of this article as a net-zero commitment is explained by Matthias Duwe:

‘Article 4.1 specifies that this goal requires a global emissions trajectory that starts with a “global peaking of greenhouse gas emissions as soon as possible”, followed by “rapid reductions”. This should lead to “a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century”, which can be interpreted to specify global carbon neutrality after 2050.’

There is widespread momentum behind net-zero from numerous civil society actors, who are pushing countries to adopt the commitment. It’s not just countries that are adopting net-zero –  states, cities, sports teams, even fossil fuel companies are taking up the challenge, with BP recently announcing that it has committed to reaching net-zero by 2050. Which invites the question: what does net-zero actually mean?

 

What does net-zero by 2050 mean in practice?

Net-zero by 2050 means that all GhG (that a country chooses to include in their target) are reduced by at least 100% of the level they emitted in the year or base period (the average over several years) they choose as their baseline. If the country still emits GhG after 2050 they need to find a way of offsetting those emissions so that they are stored (for example through carbon sinks) and are not released into the atmosphere. As Josh Burke explains, ‘In contrast to a gross-zero target, which would reduce emissions from all sources uniformly to zero, a net-zero emissions target is more realistic because it allows for some residual emissions.’

Different actors have adopted different interpretations of net-zero, for example the UK’s net-zero target currently excludes emissions from the UK’s share of international aviation and shipping. New Zealand includes all greenhouse gases except biogenic methane. Many actors allow for net-zero targets to be met through the purchase of carbon credits from abroad – which is not without controversy.

 

Conclusion: the future of long-term climate laws

It is clear that legal ideas travel between jurisdictions. Finnemore and Sikkink describe a process where norms reach a ‘tipping point’ in which a critical number of key States adopt the norm and it becomes the accepted standard. Is net-zero by 2050 becoming the accepted standard of climate laws?

Finnemore and Sikkink also explain that before a norm becomes the accepted standard some States may adopt it for purely strategic reasons, perhaps in this case to be seen to be acting on climate change. They stress that once the tipping point is reached it becomes the benchmark through which actions are evaluated and justified.

Civil society actors are celebrating long-term climate governance frameworks (with a certain level of ambition) as ‘Paris Compatible’ and therefore in line with international law. Whilst it is clear that long-term climate laws play a critical function by putting a legal duty on States to manage the transition to a low GhG economy, as we have seen it depends on how the State choose to interpret net-zero. Even if all States adopted the net-zero target (and met it) it may not necessarily mean that warming stays below 2 degrees. Indeed, civil society groups are advocating that net-zero will need to be achieved earlier than 2050 to avoid the worst impacts of climate change and are placing increasing pressure on governments to accelerate action.

 

Manifestos of nature – what the parties are saying about biodiversity

Joanna

In this post Dr Joanna Miller Smallwood (ESRC/SENSS Post Doctoral Research Fellow at Sussex Law School) discusses how the Labour, Conservative, Lib Dem and Green manifestos for the upcoming general election propose to tackle issues around biodiversity through law and policy.

We are living in a period of mass extinction more catastrophic than any other including the mass extinction period of the dinosaurs. Recent global reports show that 1 in 10 animals and plants will be extinct by 2050, and the loss of species is faster than ever. In the UK, the State of the Nature report 2019 finds that terrestrial and freshwater species have declined by 13% since 1970. This loss is not a natural phenomenon, it is human led. Society is waking up to this fundamental issue, with the help of key media personalities such as David Attenborough and rising social movements such as Extinction Rebellion. All party leaders apart from Boris Johnson took part in a recent televised debate on the approaches of their parties to tackle climate change. This televised debate also touched upon biodiversity related issues, which is promising as biodiversity often plays the underdog to debates on climate change, despite that fact that biodiversity loss is of at least equal importance in terms of planetary health. The loss of biodiversity (alongside climate change) should be at the top of any party political manifesto, these environmental issues really do trump Brexit and other societal concerns, for the simple fact that if our planetary ecosystems fail then none of the other issues will matter anyway as we may in fact cause our own extinction.

The good news is that more than ever, party manifestos for the 2019 general election are addressing key environmental issues. Not only are approaches outlined, but laws and policies are being put forward and funding promised for biodiversity in the manifestos themselves:

  • The Conservatives pledge £640 million for a new nature and climate fund;
  • Labour promise to launch a £250 billion green transformation fund;
  • the Liberal Democrats pledge to increase government expenditure to 5% of the total government expenditure within 5 years;
  • and the Greens undertake to reform the tax system to fund a green revolution.

Finally, environmental issues in the UK are receiving more focused political attention. This blogpost critically reviews the different approaches taken by the parties in relation to tree planting, nature conservation, biodiversity in agriculture, and  it highlights some transformational ideas as well as those which are fundamentally flawed.

Trees

Much has been made of party pledges to plant trees:

  • In their manifesto, the Greens promise planting 700 million trees by 2030 (an average of 70 million a year).
  • The Conservatives promise to raise the number of trees planted to 30 million trees a year by 2024 and the creation of a Great Northumberland forest of 75,000 acres by the end of next parliament.
  • Labour commits to an unquantified ‘ambitious programme’ of tree planting and an NHS forest of 1 million trees in their manifesto and Corbyn recently made an announcement committing Labour to plant two billion by 2040 (100 million a year).
  • The Liberal Democrats promise in their manifesto to raise the number of trees planted to 60 million trees a year by 2024.

If planting trees were the answer to biodiversity loss then it would be relatively clear who has the strongest party manifesto with the ranking from top to bottom being Labour, Greens, Liberal Democrats then Conservatives.

However, the focus on tree planting is problematic for two reasons:

  1. Firstly the amount of trees suggested is highly ambitious and currently much lower targets are left unmet, recent figures show tree planting is 71% short of government targets in the UK.
    This raises doubts whether the party commitments to ever increasing numbers of trees is realistic without systematic change to support these ambitious programmes.
  2. Secondly, despite the huge benefits of tree planting both as carbon sinks and for creating forest ecosystems, planting trees alone will not fully address the biodiversity crisis we are experiencing.
    This is largely because forests are only one of many important types of ecosystem and only focusing on planting trees does not address the main drivers of biodiversity loss. According to the State of the Nature 2019 report, in the UK, the main drivers of biodiversity loss are agricultural management, climate change, hydrological change, urbanisation, pollution, woodland management and invasive non-native species. The causes of biodiversity loss are therefore multiple and complex, and they demand more than tree planting alone and any tree planting that does take place has to be carefully thought out.

Nature

The most obvious solution that springs to mind when considering biodiversity loss is its antithesis, nature conservation. How can nature be conserved, restored and enhanced?

Each party have made broad promises in their manifestos in relation to nature conservation. The Greens’ ‘Green New Deal’ pledges to make space for nature, create policies to restore habitats in urban, suburban and countryside environments and uphold access to diverse nature as a human right. Recognising access to a healthy biodiverse environment as a fundamental human right is a ground-breaking but incredibly sensible rights-based approach to secure more protection to biodiversity. It opens numerous avenues to provide much greater legal protection for biodiversity and nature through the provision of potential legal actions for infringements of this right.

The Greens also aim to create a tryptic of environmental legislation: an Ecocide act (providing for crimes against the natural environment), a Clean Air Act (with ambitious binding emissions targets) and a Sustainable Economy Act (with binding targets for soil quality and biodiversity).

It is envisaged that these legal environmental obligations will be monitored and enforced through a new Environmental Protection Commission. Providing such a means of accountability is vital for the success of the laws introduced. Unsurprisingly the Greens have a strong and comprehensive well thought out environmental programme which addresses biodiversity loss. Key to the Green approach is not only the inclusion of a human right to nature and environmental laws but also a means to enforce compliance. In the UK, conservation legislation is often difficult to enforce due to vague provisions and insufficient funding of regulatory bodies to monitor compliance and to bring non-compliance cases to court. Equally important to the creation of clear environmental laws are well funded independent bodies, that can enforce legal provisions and, in this way, bring real meaning to them.

Labour heralds a ‘green industrial revolution’ not only by creating a million green jobs but by restoring nature. Labour promises a Plan for Nature that sets concrete legally binding targets to drive restoration of species and habitats, this is good news.

Furthermore, they promise to fully fund the Environment Agency which is the existing body that regulates environmental issues from flooding to air quality as well as bringing prosecutions. Labour pledge to increase funding to Department for Environment, Food and Rural Affairs (DEFRA) agencies by a combined annual total of £70m with a significant amount going to the Environment Agency (EA) and over half to Natural England (NE) to expand their role in monitoring and evaluation of the natural environment. These expanded roles for the EA and NE are key to incentivise businesses and other stakeholders to change behaviours so that the new species and habitat restoration targets can be met.

Labour also pledges to create an environmental tribunal to ensure that administrative decisions are consistent with environmental and nature-recovery obligations, this is a real positive step forward and would hold government departments accountable for their impact on nature. Labour provide a robust approach to nature conservation; their approach moves beyond solely laws and policies outlining binding obligations, but addresses means of monitoring and enforcement and therefore accountability to nature within decision making of the sectors that drive biodiversity loss as well as across government.

The Conservatives promote the Draft Environment (Principles and Governance) Bill 2018 (the Environment Bill) which is currently awaiting parliamentary approval depending on the outcome of the election. It has received a mixed response with positive feedback in that it increases ambition in relation to nature recovery, it also adopts a principle based approach where principles such as the precautionary principle will be applied by Ministers of the Crown in making, developing and revising their policies. It is yet not clear exactly how this principle based approach will be applied and work in practice.

The Environment Bill has also been criticised as it does not include definite binding targets or a statutory duty on ministers to create such targets. Without any backbone to the law that places a clear duty on ministers, it could be a token nod to the creation of targets and a principle-based approach and this is very concerning.

The Conservatives propose to set up an Office for Environmental Protection (OEP), an independent body to provide scrutiny and advice on environmental law as well as having enforcement functions which is positive and the OEP would promote the new provisions within the Environment Bill. there are concerns the body is too closely linked to DEFRA in terms of funding and accountability which raises some concern about its independence.  Further, if the provisions laid out in the Environment Bill are too vague then enforcement of them will be difficult in practice.

The Liberal Democrats promise a Nature Act to set legally binding near term and long-term targets for improving water, air, soil and biodiversity and guaranteeing an Office of Environmental Protection (OEP). They promise the independence of the OEP and powers and funding to enforce compliance.

They also provide for structural changes within government including establishing a Department for Climate Change and Natural Resources. As well as the appointment of a cabinet-level Chief Secretary for Sustainability in the Treasury – this is a promising suggestion as it begins to promote the ‘mainstreaming’ of environmental issues across government departments which is key to addressing the underlying drivers of biodiversity loss.

The Liberal Democrats’ proposals for nature also provide a dedicated department for natural resources. Whilst a step forward, more important than dealing with ‘nature’ as an isolated issues is the mainstreaming of biodiversity across sectors, which is promoted at the global level by the 1992 Convention of Biological Diversity (CBD), the main global treaty on biodiversity. It is a fundamental approach that has been agreed by the CBDs 196 Member Stated and is a key approach that must be adopted by countries to avert the biodiversity crisis.

The Liberal Democrats’ proposal requires every government agency to account for its contribution towards meeting climate targets which is good – even better would be an extension of this to biodiversity targets although this is not in the current remit of the manifesto. Ensuring government departments such as agriculture, trade and industry address biodiversity begins to get to the heart of mainstreaming and accounting for their role in biodiversity loss.

The party manifestos all to a greater or lesser degree account for nature conservation within their manifestos. This is really positive and moves nature further up political agendas. However, nature conservation alone is not enough to tackle the biodiversity crisis. Political parties need to look further than solely nature conservation laws to effectively conserve, restore and enhance biodiversity. Biodiversity also needs to be mainstreamed across society and accounted for in policies and practices in relation to those sectors who drive biodiversity loss, the main one in the UK being agriculture. Legally binding targets will go some way to change behaviour, but it is key that nature conservation is also at the heart of decisions made by all sectors and incorporated into the relevant laws and policies. This is the greatest challenge and where efforts are most needed for change.

Agriculture

A recent report highlighted that the main driver of biodiversity loss in the UK is agricultural management. In the last 50 years the UK’s biodiversity has been destroyed through the intensification of agriculture. A recent DEFRA report on the abundance of birds on farms shows a 56% decline in the number of farmland birds nationally since 1970. Considering that 71% of UK land area is agricultural land this statistic is shocking. The way land is farmed in Britain is key for the restoration and enhancement of biodiversity and farming systems are needed that protect biodiversity rather than destroy it.

In their manifesto the Greens pledge to transform food and farming systems to improve human and environmental health by shifting away from intensive towards smaller-scale farming. The Green plan is for a ten-year transition to agro-ecological farming which includes the transfer of subsidies to farming methods and food systems that create jobs and restore ecosystem health. They promise to encourage the expansion and replanting of most hedgerows lost in the last 50 years through new subsidies. They will create laws to give farmers greater security of tenure to encourage investment in improvements to the land and to reduce pesticide and fungicide use by at least 50% by 2022, phase out all non-agricultural uses of pesticides, and immediately ban the most harmful substances.

They also talk of ‘encouraging’ the ‘rewilding’ of spaces through the planning system. They pledge to establish a Food and Agriculture Research Council to research sustainable and health-promoting farming, the reduction of methane emissions and soil quality. Their comprehensive approach tackles multiple practices which drive biodiversity loss and puts in place a system of farming that moves towards smaller scale farms, reduced pesticide use and planting hedgerows and other rewilding activities. This holistic approach to farming is likely to play a very positive role in not only stopping the ongoing decline in biodiversity driven by agricultural practices but transforming practices to restore and enhance biodiversity. The Greens’ revised subsidy system is planned to fund such changes.

Labour states in its Plan for Nature that it will support farmers to adapt and improve agricultural practices to reduce greenhouse gases and to change use of fertilisers and pesticides to benefit environment quality. They also pledge to consult to set appropriate targets for the reduced use of harmful pesticides and fungicides and adopt the precautionary principle in regulations. They will focus on supporting sustainable farming methods with less reliance on chemicals.

Labour pledge to maintain agricultural and rural structural funds but to repurpose them to support environmental land management and sustainable methods of food production. This talks to the elimination of subsidies and incentives which are harmful to biodiversity and promotion of positive incentives for the conservation and sustainable use of biodiversity. The Labour manifesto has many strengths including setting targets on pesticide use, supporting sustainable farming as well as reforming the subsidy system. The manifesto and Plan for Nature, however, provide little detail as to how this will be achieved and do not extend to rewilding activities on farms.

The Conservatives promote a change to the role of farmers to act as stewards of the natural world and pledge to guarantee the annual budget of farmers in return for farming in a way that protects and enhances the natural environment and safeguarding high standards of animal welfare. Their vision is to lead the world in quality food, agriculture and land management – driven by science-led, evidence-based policy. However, no detail is given on how this vision will be achieved and no laws or policies are put forward to implement these changes. There are no commitments made in relation to reduction in pesticide use, rewilding of farms or providing greater security of tenure to farmers.

The Liberal Democrats in their manifesto propose to reduce basic agricultural subsidies to larger recipients and redeploy the savings to support the public goods that come from effective land management, including restoring nature and protecting the countryside. They also pledge to support farmers to protect and restore the natural environment alongside other critical roles such as in producing food. They do not make any commitments to reduction in the use of pesticides. Their commitment to the redirection of subsides and commitment of money to nature restoration are positive. However, lack of any detail of how this will be achieved is concerning.

The political parties all envisage major changes to the way land is farmed in the UK with a focus on the farmer’s role in safeguarding and enhancing biodiversity, which is hugely positive.

However, concrete plans in the form of laws and policies and governance structures which outline how this ambitious level of change will take place are completely absent in the Conservative manifesto and lacking detail in the Liberal Democrat manifesto. The Greens provide the clearest plan of how biodiversity will be incorporated into a new agricultural system and promise laws to increase security of land tenure as well as pesticide reduction and bans, they aim to promote rewilding using the planning system and change subsidies to encourage the planting of hedgerows. Labour also have a comprehensive approach with the aim to set targets for pesticide use as well as the use subsides to promote environmental land management and sustainable farming.

Beyond nature conservation and agriculture

Nature conservation and the role of agriculture in protecting and enhancing biodiversity discussed in this blogpost are just two areas in which biodiversity needs to be addressed.

Other areas are also key to a comprehensive approach but cannot be covered here. Such areas include the importance of acknowledging the UK’s role in destruction of biodiversity overseas, either within British Overseas Territories or through trade deals. This is a crucial issue as most of the world’s biodiversity is held in the Global South and support and funding from the Global North are needed to protect vital biodiversity reserves.

Further, the role education can play in transforming societal ideologies are key to shaping a future society that respects biodiversity and the essential role it plays, and this will require great change in the way we all live and how society functions.

Things clearly must change, and political parties are beginning to recognise this. This gives some hope but is very much the tip of the iceberg, only when these commitments turn into concrete change through law and policy and strong systems of governance will the decimation we have caused to biodiversity begin to repair. Friends of the Earth and Greenpeace have produced comprehensive environmental assessments of the political parties manifestos and place the Greens and Labour as parties with the best score for environmental objectives with Liberal Democrats not far behind. They both agree that the Conservatives are very much at the bottom of the list.

Access to Justice for all – support the Brighton Legal Walk

Please sponsor the University of Sussex Law School team!

On Monday evening I’ll be participating in the Brighton Legal Walk, to support the provision of free local legal advice.

I’ll be walking with colleagues from the University of Sussex Law School to raise funds for a range of clinical law projects run through the school. These projects involve law students, supervised by faculty, providing free legal assistance on a range of issues to local people who may not otherwise have the means to access this kind of advice. Our schemes include:

  • BHT Pro Bono: run in partnership with the Brighton Housing Trust, who work to support homeless, insecurely housed and vulnerable people and to tackle both the causes and effects of homelessness and poverty.
  • StreetLaw: an innovative project that sees students working with Art Schism, a local collective of artists, to explore legal questions around the ownership of artworks and the legality of grafitti, and the potential of art therapy as a form of rehabilitation for ex-offenders. You can find out more on their blog, Facebook and twitter @SussexStreetLaw
  • The Innocence Project: provides pro bono legal and investigative services to individuals seeking to prove their innocence of crimes for which they have been convicted and working to redress the causes of wrongful convictions.
  • The Environmental Law Project: will involve students carrying out research on cases for the Environmental Law Foundation a registered charity providing pro bono guidance and representation to communities and individuals confronted by environmental issues.
  • The Creative Industries Law Clinic: will offer students a chance to be engaged in clinical work related to the areas of Intellectual Property and Media Law in general, with emphasis on digital rights issues, in partnership with Creative Commons and the Open Rights Group.

These schemes give our students a valuable insight into the ways law works in ordinary people’s lives as well as providing much needed legal advice to the community in the context of increasing cuts to legal aid and the austerity programme in general. Please give whatever you can at our fundraising page to help us maintain and develop this work.

The walk takes place this Monday 15th June and follows a 10km route from the Magistrates Court and out along the seafront to finish at Brighton Housing Trust’s First Base Day Centre.

TTIP – What’s the deal?

Emily Lydgate
Emily Lydgate

When it comes to the negotiation of trade agreements like the EU–US Transatlantic Trade and Investment Partnership (TTIP), knowledge is certainly power. The treaty text currently being negotiated by the European Commission is not publically available. Nonetheless, the Commission has declassified its negotiating mandate and made a vast amount of information available on its website, hitting, it claims, a new high for transparency. Some of the text has been leaked. There is quite a bit of information, and misinformation, out there. The problem is making sense of it. Toward this end, this post provides an overview of some of the key issues. The aim is to connect the dots between the technical documents provided by the Commission and statements of protestors which are strong on message but sometimes sparse on details.

What is TTIP?

TTIP is a trade and investment agreement currently being negotiated between the EU and the US. As well as liberalizing trade, it will introduce an Investor State Dispute Settlement Mechanism between the EU and the US (described below).

Transparency:

The Commission recently cited public concern as a justification to attempt a ‘fresh start’ in its approach to transparency, through making public many more of its positions and documents, including its Negotiating Mandate.

However, the draft treaty text is not available for scrutiny, nor are the EU’s ‘opening positions’ where it lays out its strategic goals. This is an issue of international relations with the US; confidentiality is seen as strategically vital on both sides. Therefore, while the EU claims that it will not relax its regulatory standards (see below), there is no way of confirming how this is made manifest in the text.

Benefits and risks:

Governments’ commitment to trade liberalization is underpinned by economic models that promise greater prosperity and economic growth through freer trade. The EU’s economic assessment estimates that TTIP will result in an increase of 28% in exports from the EU to the U.S. and 37% in the other direction. Consumers benefit from cheaper prices and more choice. Businesses benefit from greater market access and investment protection. This, however, also leads to public suspicion that TTIP will serve business interests rather than public interest by lowering standards and reducing public health and environmental regulation in order to enable free movement of goods, services and investments. There are also concerns that the dispute settlement mechanism which enforces the treaty overrides domestic laws and courts.

Trade aspect – GMOs and beef hormones:

Both the US and the EU belong to the World Trade Organization, but WTO negotiations have not been progressing, leading the EU and the US to pursue deeper trade integration through TTIP.

Trade liberalization has several dimensions. One of these is reducing costs applied at the border, like import tariffs. However, the EU and the US, like most highly-developed countries (or in the former case country blocs), do not have very high tariffs. TTIP, if successfully concluded, will likely include some tariff reductions, but this is not the main point.

Another component of trade liberalization is to reduce trade-restrictive regulation that prevents or complicates US products from entering the EU, and vice-versa. This is the main strategic objective of TTIP.

The main question is whether, and to what extent, regulatory coherence will lead to regulatory convergence. The EU, unlike the US, follows the precautionary principle. This means it is much more circumspect about approving Genetically Modified Organisms (GMOs), and prohibits using growth hormones in beef, for example. As the Commissioner for Trade Cecilia Malmström reiterated in February, the EU has promised that it will not weaken its standards on beef hormones and GMOs. Instead, the emphasis is on ‘cutting red tape’. In other words, the negotiations focus on areas where the standards are comparable, but a lack of mutual recognition creates hassles for exporters.

Given how clearly and repeatedly the EU has affirmed that it will maintain standards in the key areas of GMOs and beef hormones, backing down would constitute an admission of weakness and seems unlikely. However, the concern is that there might be a slip in standards in other, less high-profile areas in which the use of particular pesticides, hormones or manufacturing procedures permitted in the US is currently banned in the EU. Alternatively, there could be a move away from highly trade-restrictive measures, like import bans, and toward voluntary, consumer-driven regulation, like labels. This would mean that previously banned products would circulate in the EU market. Despite its assurances to the contrary, the Commission may well see some compromise as worthwhile in order to achieve the increases in market access that the TTIP will bring for EU products in the US. Time will tell.

Investment aspect – threatening the NHS?

Bilateral and multilateral investment treaties are legal instruments which provide foreign investors with legal protection through, for example, the right to fair and equitable treatment, and the right not to be directly or indirectly expropriated. BITs also contain clauses giving access to dispute settlement for redress against host states, in case of breaches of protection. In Investor State Dispute Settlement (ISDS), an investor can make a claim directly against the host state, which is resolved not through domestic courts, but in an international ad hoc tribunal. An earlier post in this blog well illustrates some of the key issues of importance with respect to ISDS in the TTIP.

Public awareness about ISDS recalls the WTO in 1999, when it went from an obscure, technocratic treaty to the subject of the ‘Battle in Seattle’. Similarly, bilateral and multilateral investment treaties have been ongoing for some time; indeed, there are currently well over 2,000 of them. Only recently have they been the subject of such public scrutiny.

It is quite interesting that the EU and US, as highly developed countries, have inserted an ISDS mechanism in the TTIP. Historically, the vast majority of bilateral investment treaties were between developing country ‘host states’ and developed country investor states. To be blunt, the implication was that these developing countries did not have a robust or fair enough domestic legal system to guarantee the investments.

An ISDS mechanism in an agreement between two highly developed country blocs will be an interesting experiment to watch. One possibility is that it will end up being nothing more than a footnote; foreign investors will be satisfied to rely upon ‘host state’ domestic courts applying domestic law. The second is that either the EU and the US, or both, will use the ISDS mechanism aggressively. The US has a bad reputation for aggressiveness, as demonstrated in the popular programme ‘Last Week Tonight’, which brought to the public attention how US tobacco companies pursued ‘justice’ against plain packaging laws through, for example, changing the location of corporate headquarters to countries in which they had better investment treaty protection.

In the TTIP context, particular concern has focused on how commitments to liberalize trade in services, coupled with the ISDS mechanism, might threaten public services such as the UK National Health Service. For example, if NHS services are provided by US companies, but the UK decides to re-nationalize them, there could be scope for a claim that the US investment has not been treated fairly.

Again, the Commission has taken pains to reassure the public that EU public services will not be threatened by TTIP. However, a leaked chapter of the draft agreement reveals that the NHS is not listed as a specific exemption which has led to increased calls for making this protection more explicit.

Timing:

The TTIP negotiations have been ongoing since July 2013. The timing of their conclusion much depends on the US Congress and on the election cycle. In the US, it is notoriously difficult for trade agreements to be approved by Congress, and the fast track Trade Promotion Authority expired in 2007. It is widely believed that there will be no progress until Congress passes the TPA again, as the Executive Branch currently has little authority to commit to TTIP. This leads to the question of President Obama’s strategic priorities and whether he will attempt to introduce the bill to Congress before the end of his term. The current dysfunction in the relationship between Obama and the US Congress, and the fact that the US is concurrently negotiating a more strategically important trade and investment agreement, the Trans-Pacific Partnership, lends an element of uncertainty to the process.

Dr Emily Lydgate is a Lecturer at the School of Law, researching trade liberalisation and environmental policy