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Environment & Climate Change Law 2020 Environment & Climate Change Law 2020 A practical cross-border insight into environment and climate change law 17th Edition Featuring contributions from: Ambientalex - Studio Legale Associato Harris Kyriakides LLC Pinheiro Neto Advogados August Debouzy Kanagawa International Law Office Rouse & Co International (Thailand) Limited Bär & Karrer Ltd. Kieti Advocates LLP Snell & Wilmer Blake, Cassels & Graydon LLP LAER Abogados, S.C. Stibbe Borenius Attorneys Ltd LAVÍN Abogados & Consultores United Kingdom Environmental Law Association Burges Salmon LLP Law Firm Neffat (UKELA) European Environmental Law Forum (EELF) M.V. Kini URBAN STEINECKER GAŠPEREC BOŠANSKÝ Gaastra attorneys at law Maddocks Uría Menéndez Görg Partnerschaft von Rechtsanwälten mbB Makarim & Taira S. Wistrand Law Firm Guyer & Regules Philippi Prietocarrizosa Ferrero DU &Uría Youssry Saleh & Partners ISBN 978-1-83918-023-1 ISSN 2045-9661 Published by 59 Tanner Street London SE1 3PL United Kingdom Environment & +44 207 367 0720 [email protected] www.iclg.com Climate Change Law 2020 17th Edition Group Publisher Rory Smith Senior Editors Suzie Levy Rachel Williams Contributing Editor: Editor Jane Simmons Simon Tilling Creative Director Burges Salmon LLP Fraser Allan Printed by Stephens and George Print Group Cover image www.istockphoto.com ©2020 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, Strategic Partners digital or analogue, in whole or in part, is strictly forbidden. Disclaimer This publication is for general information purposes only. It does not purport to provide comprehen- sive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents Expert Chapters Entering the Decade of Action: What Role for UK Environmental Law? 1 Simon Tilling, United Kingdom Environmental Law Association (UKELA) The Courts as Guardians of the Environment – New Developments in Access to Justice and Environmental Litigation 6 Jerzy Jendrośka & Lorenzo Squintani, European Environmental Law Forum (EELF) The Impact of a UK Legislative Commitment to Net Zero by 2050 13 Simon Tilling, Burges Salmon LLP Q&A Chapters Australia Italy 18 Maddocks: Michael Winram & Patrick Ibbotson 119 Ambientalex - Studio Legale Associato: David Röttgen & Andrea Farì Brazil 27 Pinheiro Neto Advogados: Antonio José L.C. Monteiro & Japan Mariana Gracioso Barbosa 126 Kanagawa International Law Office: Hajime Kanagawa & Yoshiko Nakayama Canada 35 Blake, Cassels & Graydon LLP: Jonathan W. Kahn & Kenya Anne-Catherine Boucher 135 Kieti Advocates LLP: Clarice Wambua Chile 42 Mexico LAVÍN Abogados & Consultores: Julio Lavín Valdés & 142 LAER Abogados, S.C.: Luis Alberto Esparza Romero Andrés Del Favero Braun Netherlands Colombia 149 Gaastra attorneys at law: André H. Gaastra 50 Philippi Prietocarrizosa Ferrero DU &Uría: Luis Fernando Macías Gómez Slovakia 156 URBAN STEINECKER GAŠPEREC BOŠANSKÝ: Cyprus Marián Bošanský & Ondrej Urban 58 Harris Kyriakides LLC: Eleni Neoptolemou & Christina Christodoulou Slovenia 163 Law Firm Neffat: Vesna Ložak Polanec & Domen Neffat Egypt 66 Youssry Saleh & Partners: Esraa Hesham, Spain Yulia V. Akinfieva, Amina El Baz & Zaynab Ismail 170 Uría Menéndez: Jesús Andrés Sedano Lorenzo & Bárbara Fernández Cobo European Union 73 Stibbe: Jan Bouckaert, Guan Schaiko & Sweden Cedric Degreef 177 Wistrand Law Firm: Rudolf Laurin Finland 81 Switzerland Borenius Attorneys Ltd: Casper Herler & 183 Bär & Karrer Ltd.: Prof. Dr. Markus Schott Henna Lusenius Thailand France 191 88 Rouse & Co International (Thailand) Limited: August Debouzy: Vincent Brenot & Fabrice Mattei & Norasak Sinhaseni Emmanuelle Mignon United Kingdom Germany 198 Burges Salmon LLP: Simon Tilling & Joanne Attwood 96 Görg Partnerschaft von Rechtsanwälten mbB: Dr. Thomas Christner & Dr. Benedikt Walker Uruguay 207 Guyer & Regules: Anabela Aldaz Peraza & India Fiorella Arenas Bollazzi 103 M.V. Kini: Tavinder Sidhu & Kshitez Kaushik USA Indonesia 215 Snell & Wilmer: Denise A. Dragoo 112 Makarim & Taira S.: Alexandra Gerungan & Raditya Anugerah Titus Chapter 1 1 Entering the Decade of Action: What Role for UK Environmental Law? United Kingdom Environmental Law Association (UKELA) Simon Tilling Introduction a Christmas general election in December 2019, with Brexit uncertainty hanging over the electorate and the economy like It is a privilege to author this introductory chapter to The International a dark cloud. You won’t be surprised, therefore, to read that I Comparative Legal Guide to: Environment & Climate Change Law 2020, will avoid predictions about the political short-term and instead on behalf of the UK Environmental Law Association, known to focus on the longer term. Whatever the outcome of the election, its members and friends as UKELA. it is striking how prominent environmental issues have been, UK environmental law is entering a period of significant with leader’s debates devoted to the topic of climate change and change. In part, that is driven by necessity, as the UK works the mainstream parties outbidding each other on how many out how to extricate its environmental laws from the European trees will be planted. It would be surprising if this rise in envi- Union legal system. However, as is so often the case, a require- ronmentalism evaporates, and whatever administration takes ment to change allows us to ask, “can we do this better, can we the UK into the new decade will need to address it. improve the system?”. For the first time in a generation, the I made one prediction in 2018 that did come true. In October UK’s environmental lawyers have the opportunity to influence 2018, the UK Government and the governments of Scotland the whole foundations of environmental law and governance in and Wales asked the UK’s independent Committee on Climate the UK, and I am proud to say that UKELA is at the forefront Change to advise it on what was required for the UK to play of that endeavour. its part in limiting global heating to 1.5 degrees Celsius and in Change is needed, and not (just) because of the UK’s planned particular, when the UK should reach net zero emissions of exit from the European Union. It is needed because the prob- carbon dioxide and other greenhouse gases, as part of the UK’s lems to the environment that we face are huge. They are well obligations under the United Nations Framework Convention known: climate change; biodiversity loss; resource over-use; on Climate Change’s Paris Agreement. I predicted that, what- plastic pollution; water scarcity; and the public health emergency ever the advice, it would be hard to ignore, given the authorita- from air quality, etc. The solutions do not emerge from the legal tive voice of the Committee on Climate Change and its reputa- status quo. New thinking is needed. tion. The Committee on Climate Change recommended that In this chapter I share some perspectives gained from the the UK as whole should reach net zero emissions by 2050. In the vibrant debates and discussions that have taken place this year, summer of 2019, when the UK Parliament agreed on very little within UKELA and indeed between UKELA and others, else, an amendment to the Climate Change Act 2008 achieved including the UK Government. I do not claim in this chapter cross-party support and its passage enshrined the commitment to speak on behalf of UKELA: UKELA is far too broad a to reach net zero emissions by 2050 into UK law. The enormous church to have “a point of view”, and that is one of its great implications of this change deserve a chapter of their own, and strengths. No other organisation brings together the full spec- I am pleased to say the topic is addressed in detail in Chapter 3. trum of voices in environmental law: regulators; campaigners; For the purpose of this chapter, I simply note that this signifi- solicitors; barristers; consultants; academics; senior members of cant achievement is yet more evidence of political and societal the judiciary; students and the voices of tomorrow; and those support, and indeed, in some cases, a loud demand for change. from other professions who are simply concerned to ensure the These issues and public concerns have been used to further preservation and development of good law for the benefit of the Brexit agenda. For example, free from the EU’s common the environment. When we make our interventions into public agricultural policy, the £3 billion in subsidies that go to support debate, we have the ear of Government and Parliament, and UK agriculture could be used for environmental benefits, using our reputation as an impartial, objective voice on matters of “public money for public goods” based on a natural capital good environmental law is unparalleled. As the whole country approach. Given the significant changes in land use that will be wonders what will happen next for UK environmental protec- needed to deliver a net zero greenhouse gas economy, a radical tion, UKELA as an organisation has never been so relevant, or overhaul of land use subsidies is likely whatever the outcome of so vital. All I can seek to do here is to reflect on those excellent Brexit. debates and discussions and to offer you my own perspective. Of course, there are others who argue Brexit provides an opportunity to row back on the “green tape” from Brussels, A Period of Change and gives us more freedom to drive economic growth without what some see as unnecessary regulation. Certainly, regardless Last year, I wrote that “to address (and predict) political events of one’s perspective, it is possible to achieve the same objec- … would be futile and foolish”. I was right. Back in December tives and high environmental standards of EU environmental 2018, I would not have guessed that the UK would be facing law through different, potentially more “British” methods.
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