Abstract Biodiversity net gain (‘BNG’), introduced in England by the Environment Act 2021, requires most new property developments to deliver a 10 per cent net increase in biodiversity as a condition of planning permission. While biodiversity offsetting mechanisms like BNG have attracted extensive technical, ethical, and political criticism, comparatively less attention has been directed towards the role of law in constituting the regime. This article argues that BNG depends on a ‘juridification’ of biodiversity through which the natural-scientific concept of biodiversity is captured in law using the legal concepts of planning permission and property rights. Assessing what is lost in translation between law and ecology, the article suggests BNG’s perceived shortcomings can be partly understood as consequences of the legal building blocks used to reconstruct biodiversity, which risk distorting foundational ecological principles. The article concludes that BNG offers a case study in the challenges of incorporating ecological concepts like biodiversity into law.
Abstract This article examines recent proposals to introduce a right to a healthy environment in Scotland as part of a new Human Rights Bill. With the introduction of the Bill currently on hold, the article considers what the right to a healthy environment in Scotland could look like if viewed through the lens of transformative environmental constitutionalism. It maps the extent to which environmental rights are currently recognized in Scotland, making a normative argument for why a standalone right to a healthy environment is needed and how an ecocentric approach to the right could be taken. Rather than offering a policy prescription, the article aims to invite discussion on what a transformative approach to environmental rights in Scotland could look like and the extent to which it is compatible with the proposals for the Human Rights Bill and the existing legal framework.
This analysis departs from doctrinal exegesis of the International Court of Justice's Advisory Opinion on climate change to reflect, from the cockpit of the process that produced it, on how impact was conceived throughout the campaign, the drafting of the request, and the conduct of the proceedings. It explains that a central strategic objective was not simply to secure a symbolically powerful statement of law, but to trigger legal tipping points within domestic systems. Four such tipping points were given close consideration: the individualization of the relevant conduct; the integration of cumulative and downstream effects into project-level assessment of new fossil fuel developments; the clarification of adaptation obligations and their distributive implications; and the harnessing of human rights law as a vehicle for domestic remedies, including claims concerned with reparation.
Abstract This article interrogates water theft in Australia as a lens through which to explore the ‘carceral creep’ in environmental governance. Situating its analysis in the context of growing international reliance on punitive responses to environmental harm, it examines the deliberate choice to frame unlawful water use as ‘theft’, arguing that this language shapes governance responses, constructs water as property, and both illuminates and obscures the victims of water misuse. Comparing responses to water theft in New South Wales and Victoria within Australia's Murray–Darling Basin—where market-based governance has created strong financial incentives for non-compliance—it contrasts New South Wales's dedicated compliance body and use of enforceable undertakings with Victoria's more conventional enforcement model. Situating these practices within broader critiques of carceral logic and environmental restorative justice, the article argues that criminal and restorative approaches may be more complementary than oppositional, with institutional design playing a critical enabling role.
Abstract The Climate Change Advisory Opinion’s engagement with, and clarification of, the erga omnes and erga omnes partes character of certain obligations relating to climate change is significant, both on its own terms and in relation to available processes for their enforcement. The Opinion’s confirmation that States owe these obligations to the international community as a whole—or to all other parties to the relevant climate treaties—helps to clarify and solidify the legal framework for the protection of the climate and the environment. Although this is a development that had broadly been anticipated in the literature, the Court’s holding is meaningful in the light of its role in the development of international law. The Advisory Opinion cannot, of course, resolve the legal and political challenges of global climate governance, but its recognition of erga omnes obligations in this context is a welcome reminder of the shared interests at stake. As the effects of climate change continue to unfold unevenly across the world, the affirmation of collective obligations concerning protection of the climate cements an important shift in the legal architecture available to address this most urgent challenge.
This essay analyses the Advisory Opinion of the International Court of Justice (ICJ) on Climate Change to determine the extent to which the Court resolves contestations over the principle of common but differentiated responsibilities and the differentiation among States that flows from it. It argues that the Court, in seeking to untangle the Gordian knot of differentiation, resolves some outstanding issues and sidesteps others. Where it does resolve long-standing disputes, as for instance over the salience of historical responsibility for GHG emissions, the Court strengthens the normative framework of international climate change law. However, applying this strengthened normative framework will be challenging given the chasm between this framework and the structural (in)ability of the existing legal institutions to operationalize it.
The International Court of Justice's Advisory Opinion on climate change marks a fundamental moment in the evolution of international law. For many years, the scope and content of State's obligations in relation to climate change remained contested and ambiguously framed, and now, the Court's engagement has offered unprecedented clarity, affirming that State's obligations are not just confined to the climate change treaty regime but also extend into the realm of customary international law and human rights law. What is especially significant is the Court's explicit recognition that the impacts of climate change directly implicate a wide range of fundamental human rights. While the Advisory Opinion is seen as ground-breaking, it has been criticized for its vagueness on human rights obligations in climate change. Rather than focusing on these limitations, this study adopts a constructive, forward-looking approach, exploring how the Court's reasoning can be effectively used to support future climate litigation.
This analysis sets out five wider lessons that can be learned from the International Court of Justice's Advisory Opinion on the Obligations of States in respect of Climate Change for developing robust legal responses to climate change in national legal systems. These lessons are about the competence of courts; about word work; about deeper legal structures; about thick legal expertise; and about legal imagination. Overall, this study of the Advisory Opinion underscores what is required to ensure the rigorous evolution of legal thinking in light of climate change. To put the matter differently, these are lessons in how to 'hope with teeth'.
Scotland has committed to restore 250,000 and 400,000 hectares of peatland by 2030 and 2040, respectively, to help achieve net-zero emissions by 2045. Large areas of peatland, however, are under agricultural management and, as such, subject to conflicting environmental, economic, and social demands. This article investigates the role of law in shaping the governance and use of agricultural peatlands in this context. It shows that, historically, Scots law has systematically supported the concentration of landowner control over, and the drainage of, agricultural peatlands. Recent integration of peatlands into Scottish climate laws has occurred in parallel with Scotland's commitment to achieve net zero in a 'just' way. Yet, realizing a just transition to net zero is hindered by a lack of strategic land use planning, a focus on voluntary and market-led action, and limited opportunities for communities and other relevant parties to participate in and benefit from peatland use change.
This case law overview comments on significant UK environmental law cases for the period 1 April 2025 to 31 March 2026. It begins with an overarching introduction that draws some general themes from our selection of cases. It then addresses 12 significant cases concerning public rights in land, crematoria, environmental assessment, habitats, the Environmental Principles Policy Statement, forestry, water, and Aarhus Convention claims. It ends with some final thoughts on this year's cases and the year ahead.
This analysis of the Advisory Opinion of the International Court of Justice (ICJ) on climate change focuses on the application of customary international law. The ICJ identifies a customary duty to prevent significant harm to the climate system and some more specific obligations. It notes that these rules apply to every State, irrespective of their participation in climate treaties. What remains less clear, however, is the content of the duty of prevention and, more pragmatically, how courts could assess compliance with this duty. This analysis interprets the Advisory Opinion as suggesting that courts could rely on a set of indicia to determine whether, as a whole, a State is making efforts consistent with customary international law.
Conservation covenants are a key legal mechanism for permanently protecting biodiversity on private land in Australia and elsewhere. Yet their contribution to national and global targets for expanding conservation and restoration areas remains limited. This constraint arises not only from the traditional view of covenants as instruments of passive conservation but also from the limited incentives and benefits available to participating landholders. A central governance challenge lies in reconceptualizing reciprocity within covenanting relationships. Reciprocal arrangements should recognize the diversity of landholders' values and motivations that shape participation decisions, while also reflecting shared responsibility for environmental stewardship. Current Australian legal frameworks and practices insufficiently articulate or operationalize reciprocity in ways that accommodate these considerations. We propose a more principled and systematic approach to reciprocity to strengthen the effectiveness, equity, and long-term impact of conservation covenants in advancing biodiversity protection and ecological restoration on private land.
In Environment Protection Authority v Forestry Corporation of NSW [2024] NSWLEC 84, the New South Wales Land and Environment Court granted a community organization leave to participate as amicus curiae in a sentencing hearing for an environmental offence, citing restorative justice as part of the wider context for doing so. I argue that while amicus curiae participation may be valuable in sentencing hearings, it is structurally incompatible with restorative justice due to the absence of voluntariness. It also fails to realize core restorative benefits, including dialogue, innovative solutions, and a victim-centred frame. The analysis concludes that these benefits may be more effectively realized through established restorative justice mechanisms, supported by education, cost assistance, holistic conceptions of environmental harm, and stronger political and legislative frameworks.
Philanthropy influences environmental law in ways that extend beyond the granting and withholding of funds to environmental civil society. Ideas and approaches do not just emerge but are constructed by a complex range of forces and actors, including philanthropy. Drawing on publicly available literature, plus interviews with actors in the philanthropic grant-making world, we explore that influence through three lenses: framing or making meaning of the world; networking by bringing individuals and organizations together around a common endeavour; and more tentatively, the self-belief and immense sense of agency that allows some organizations to extend their vision and values far and wide. The ways in which the most active parts of philanthropy can amplify and intensify their voice has the potential to shrink the space for diversity of ideas and approaches in environmental law. Even if we are not taking philanthropic money, we are still part of their world.
On 29 August 2024, South Korea's Constitutional Court issued a landmark ruling declaring Article 8(1) of Korea's Carbon Neutrality Framework Act unconstitutional for failing to set quantitative emission reduction targets. It thereby makes a significant contribution to the development of climate litigation in Asia. By mandating legislative action to include specific mid-term greenhouse gas reduction targets, the decision reflects a broader global trend towards increased juridical intervention where legislative approaches have fallen short. This analysis situates the Korean decision within the broader theoretical framework of environmental constitutionalism and intergenerational equity and examines its contribution to the evolving global climate law jurisprudence.
The Crown Estate has an important role as a land manager and licensor of renewable energy projects in the UK, and the management of its assets links to long-term environmental targets, including the achievement of net zero by 2050. Recent debates on the devolution of the Crown Estate in Wales are therefore of importance to the future of environmental governance systems and renewable energy production. This analysis considers the general duty of the Crown Estate in relation to net zero and sustainable development targets, as well as how the devolution settlement has created the possibility for policy divergence and the extent to which the Crown Estate's operations have become territorialized. It finds that should the devolution of the Crown Estate take place in Wales, the emphasis will rest with the Welsh Parliament to create an ambitious, achievable, and enforceable governance structure for the effective delivery of environmental and net zero targets by a Welsh Crown Estate.
This article examines the regulation of environmental advertising claims-commonly termed 'greenwash'-through the lens of private governance and legitimacy theory. While climate law scholarship often foregrounds public regulation or litigation, the UK's Advertising Standards Authority (ASA) offers a distinctive case of an autonomous private legal regime exercising public-facing authority. Against entrenched scepticism about self-regulation and its democratic deficit, the article argues that the ASA demonstrates notable epistemic competence and procedural robustness in adjudicating complex environmental claims. Analysis of recent rulings against major corporations, including banks and oil majors, suggests that the ASA's enforcement model, though reliant on reputational sanctions and soft law, achieves high compliance and enjoys judicial deference. At the same time, limitations persist: opacity in case selection, informal resolution practices, and the unexamined deployment of AI monitoring tools raise concerns about transparency and accountability. Situating the ASA within debates on private environmental governance, output legitimacy, and the hard/soft law continuum, the article contends that while the ASA cannot overcome structural drivers of climate-harmful consumption, it offers a rare example of sustained success in climate-related dispute resolution.
Fossil fuels have long been regarded as natural resources that States may freely exploit. That right is now limited by the prospect of State responsibility for fossil fuel exploitation, affirmed by the International Court of Justice in its 2025 advisory opinion on climate change. This Analysis examines the Court's unanimous guidance on fossil fuels, as well as the more precise guidance in joint and separate declarations on the phasing out of production, consumption, licensing, and subsidies. Then it considers how States may defend phase-out measures in investor-State dispute settlement (ISDS) proceedings. Drawing an analogy with slavery and other harmful industries that were lawfully abolished without needing to pay full compensation, it examines a range of measures that may be defended in investment arbitration and the possible relevance of climate law in commercial arbitration. It concludes by observing a disparity between international legal developments and the expansion of the oil and gas industry.
