Interview: Prof Carolyn Abbot, Professor of Environmental Law | University of Manchester

Drawing from her extensive experience, Prof. Abbot discusses the role of NGOs in shaping public participation through law and the impact of their work in both the UK and India. She also delves into pressing global environmental issues, such as the association between climate change and human rights, the management of water resources, and the laws encouraging international green energy investment. Prof. Abbot's perspectives provide invaluable guidance for students aspiring to contribute to sustainable development through a career in environmental law.

Legal Bites: Can you elaborate on how environmental groups use and understand law and legal expertise in shaping environmental policy, particularly in the post-Brexit landscape?

Prof. Carolyn Abbot: Brexit provided a unique opportunity for environmental groups to influence post-Brexit environmental law, exemplified by the Environment Act 2021. Our research, which included interviews with 17 individuals from various larger, well-established NGOs, focused on the role of legal expertise in these organizations. The monograph Abbot and Lee, Environmental Groups and Legal Expertise: Shaping the Brexit Process (UCL Press, 2021) is available for open access here.

Use of Law by NGOs: Environmental NGOs, especially larger ones like ClientEarth, RSPB, and WWF, utilize law extensively for litigation, advocacy, and lobbying. Legal arguments serve as powerful tools to legitimize demands and influence policy. Our analysis of submissions to Select Committee Inquiries revealed four main legal strategies: establishing credibility, using 'legal hooks,' assessing government commitments, and comparing these with best practices from other regions. Despite this, NGO lawyers often follow the campaigners' agendas rather than shaping them.

Understanding of Law: The understanding of law within NGOs is shaped by their organizational culture and identity. Many view legal expertise primarily through the lens of litigation and compliance, often seeing law as adversarial. This perspective may undervalue the potential of legal expertise in non-courtroom contexts, such as legislative amendments. Legal contributions are often seen as technical support rather than central to NGO objectives.

Factors Influencing Use and Understanding: Internally, the use of law is influenced by resource availability. Legal expertise is often thinly spread, with NGOs like ClientEarth being exceptions. The environmental NGO sector includes many early-career legal experts, highlighting both the benefits of youthful energy and the need for experienced legal professionals. There's also an observed undervaluing of legal specialization, with a preference for generalists.

Externally, NGOs' legal strategies are shaped by political and legal opportunities. The openness of political institutions and the incentives or barriers to court use influence how NGOs engage with the law in their advocacy efforts. Our research underscores the interconnectedness of NGO resources, culture, and strategic use of legal expertise in shaping environmental policy post-Brexit.

Legal Bites: What have been the most significant challenges and opportunities for environmental NGOs in influencing environmental law and policy post-Brexit?

Prof. Carolyn Abbot: During the period of our study, environmental groups faced a number of challenges, not least the task of unpicking the UK’s relationship with the EU. The EU has dominated the environment in the UK. EU environmental law created legally binding standards within our domestic legal system and the UK participated in the EU decision-making bodies. Importantly, we would no longer be able to rely on EU measures that enhanced the accountability of government for the implementation and enforcement of environmental law, leading to a significant ‘governance gap’.

We can also look at the dramatic and dynamic UK political context within which environmental groups were seeking to influence new laws and policies. Between June 2016 and June 2020, the UK had three Prime Ministers, five Secretaries of State for the Environment and two General Elections. The government veered from having no parliamentary majority to a working majority of 87 seats. This shifting political opportunity meant that environmental NGOs had to be incredibly agile and dynamic in their attempts to shape the new legislation.

It also created an important opportunity beyond the shaping of new legislation. Greener UK, hosted by Green Alliance was a formal coalition of 13 major environmental groups with a combined membership of over eight million. Set up in 2016, its main aim was to ensure the maintenance and enhancement of environmental protections post-Brexit. This is not the first collaboration in the sector (e.g. the Wildlife and Countryside Link (England) is an important coalition of environmental groups) but Greener UK’s high-profile advocacy work on various iterations of the Environment Bill did place it at the heart of the environmental sector’s work on post-Brexit environmental law and it can claim considerable credit for important parts of the Environment Bill. The building of this coalition brought groups together under a largely shared agenda in a united voice. Joint working makes the most of scarce expertise and the community’s ability to call on legal expertise in the Brexit crisis was in part due to effective NGO collaboration.

Legal Bites: How do you see the role of public participation evolving in environmental decision-making processes, and what legal frameworks best support this participation?

Prof. Carolyn Abbot: Public participation lies at the heart of good environmental decision-making. This is recognised in numerous international, EU and domestic environmental laws. It is, however, difficult to do well and numerous challenges face organizations and individuals who are looking to participate in decision-making. Unfortunately, it seems that there is a trend towards eroding legal rights to public participation across the EU. Certainly from a UK perspective, the political rhetoric seems to be towards less rather than more participation. For example, the newly elected Labour government’s manifesto committed to implementing planning reforms so the UK can build nationally significant infrastructure projects more effectively including by speeding up the process. We may well see a reduction in participatory rights as a result. It seems that the Labour government is also wedded to replacing EIA (of which public participation is a core part) with a system of Environmental Outcome Reports although the role of the public in that process is yet to be decided.

In terms of legal frameworks, it is imperative in my view that states remain committed to fully implementing the provisions of the Aarhus Convention on access to environmental information, public participation in environmental decision-making and access to justice in environmental matters. My work with Professor Maria Lee (UCL) on NGOs and the Aarhus Convention points to the fact that NGOs have largely neglected the middle participation pillar, focusing on access to justice (see further Abbot and Lee, “NGOs Shaping Public Participation Through Law: The Aarhus Convention and Legal Mobilisation” (2024) 36(1) Journal of Environmental Law 85-106 available open access here ). Domestic legislation on public participation, which imposes clear and binding obligations on state bodies, is crucial.

Legal Bites: Based on your research, what are the key factors influencing regulatory compliance and enforcement in environmental law, and how can these be improved at national and international levels?

Prof. Carolyn Abbot: There are a range of factors that influence regulatory compliance. Businesses must be aware of and understand the environmental rules that apply to them. There is a wealth of evidence which points to the fact that one of the main reasons for the lack of compliance is poor understanding, particularly amongst smaller businesses that collectively have a significant impact on the environment. Added to this is a lack of resources and capacity to comply. The literature tells us that in most cases, businesses want to comply with the rules.

In terms of regulatory enforcement, one of the key challenges is that regulators and other state bodies do not have the resources (financial, expertise etc) to enforce compliance with environmental rules. This is certainly the case in England with Environment Agency resources spread thinly across an ever-increasing range of responsibilities. They must also have an effective set of enforcement tools (formal and informal, criminal, civil and administrative) that enable them to tailor their enforcement response to the circumstances of non-compliance. This has been improved in recent years and the Environment Agency is making good use of a range of enforcement approaches.

Legal Bites: Could you share insights from your upcoming chapter on transnational environmental crimes? What alternative approaches do you propose for tackling these complex issues?

Prof. Carolyn Abbot: Transnational environmental crimes pose a significant risk and challenge to biodiversity and ecosystem services. Complex global value chains, working across national boundaries and involving multiple actors, have created new avenues and opportunities for transnational environmental crimes. In my chapter with Dr Gary Lynch-Wood (University of Manchester), we argue that the detection and prevention of transnational environmental crime poses a challenge for regulation. Private enterprises, operating within and across global supply chains, could play an important role in addressing the problem. Emerging mandatory due diligence for human rights and environmental impacts has the potential to support more traditional criminal law enforcement responses to transnational environmental crime. However, important questions remain whether these measures are sufficiently targeted or well-structured to be effective.

Legal Bites: In your opinion, what role do criminal penalties play in securing environmental compliance, and how effective have these been within EU Member States?

Prof. Carolyn Abbot: In my opinion, criminal penalties are an important part of the enforcement toolbox and send a strong moral signal that pollution is wrong. Criminal prosecution is not, however, always appropriate and should, in my view, be reserved for the most serious pollution offences or where the company or individual in question is a repeat offender. Their role at the EU level has been recently reasserted in the new EU Environmental Crime Directive which introduces several new offence categories which must be the subject of criminal liability. In terms of effectiveness, this is a difficult question to answer! Historically, the courts at least in the UK have failed to see environmental crimes as serious crimes, with low monetary fines imposed in most if not many cases. I think that if criminal penalties are reserved for the most serious of offences, and the sentence (monetary fine, prison term etc) reflects the seriousness of the crime, they can be very effective. But they are an expensive tool. Prosecution costs are high and prevention and deterrence may be better achieved using alternative civil or administrative penalties.

Legal Bites: As a member of the UN Expert Group, what are the main recommendations you have contributed towards the legislative guide on combatting pollution crime?

Prof. Carolyn Abbot: Attending the UN Expert Group workshop was insightful. Here are a few key contributions I made to the legislative guide on combatting pollution crime:

1. Environmental Principles: I emphasized that environmental principles should form the foundation of legal frameworks. Although not always legally binding, including them in legislation signals strong intent and can guide judicial reasoning and policy ambitions.
2. Public Participation: I advocated for encouraging public participation, especially from NGOs, in law and policy-making related to pollution crime. This enhances decision-making, strengthens implementation, and promotes compliance.
3. Mens Rea in Criminal Offences: I questioned the draft guide’s requirement for mens rea, highlighting the benefits of strict liability, which emphasizes the seriousness of pollution crime and simplifies prosecution, though it can lead to lighter sentences without proper guidance and training.
4. Due Diligence: I discussed the importance of due diligence, especially for corporate enterprises involved in pollution crimes. I suggested using the guide to encourage states to adopt due diligence measures, which can enhance compliance across supply chains and involve private actors in law enforcement.
5. Alternatives to Trial: I proposed a more nuanced approach to alternatives to trial, such as enforcement notices and cautions. In the UK, these are used for both minor and serious offences, sometimes imposing significant sanctions. Their use should be tailored to the offence’s severity and context.

Legal Bites: How do you think platforms like Legal Bites, with their wide reach and focus on legal awareness, can aid in environmental protection and support environmental advocacy groups?

Prof. Carolyn Abbot: Platforms like this can support environmental groups by providing advice, support and expertise on a range of environmental matters. Importantly, the information must be accessible, even to non-experts. By offering resources in a user-friendly format, these platforms can empower individuals and organizations to make informed decisions and take action towards a more sustainable future. Additionally, they can facilitate collaboration and networking among different environmental groups to amplify their impact.