The rise of biodiversity litigation and the global legal response

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The global forecast - the perfect legal storm

According to the World Wildlife Fund's biennial Living Plant Report every hour the World loses three species. The Report explains that we have lost one third of all mangrove forests, one fifth of all global coral reefs and we have caused the trophic collapse of ecosystems. From 1970 to 2016, there was an average 68% decline in the Living Planet Index (data which monitors living vertebrate species), meaning that mammals, birds, reptiles, and fish levels have dropped by more than two thirds in just over 45 years.

The decline in biodiversity impacts the natural world, human health and well-being and disrupts the services global supply chains depend on, which the G8 estimates to be USD $125-140 trillion per year, or 1.5 times the size of global GDP.

It cannot come as a surprise that biodiversity litigation has already been quietly percolating through the legal system and is only going to increase when new supply chain due diligence legislation is enforced in different jurisdictions as the global focus following COP15 turns to restoring biodiversity.

Biodiversity litigation – Current causes of action

The causes of action for biodiversity litigation are vast and have developed from breaches of law and fundamental rights, to fighting to establish legal rights for individual animals. Biodiversity is often, at this point, still an indirect part of many cases which still focus on climate and net-zero issues, but even in such cases biodiversity is being considered by judges across the globe.

Breach of fundamental rights

In 2018, the Supreme Court of Colombia reversed a lower court decision relating to the connection between the deforestation of the Amazon rainforest and the impact on the fundamental human rights of the claimants (namely, the right to life and to a healthy environment). The Court found that the two are “substantially linked” and determined that the degradation of the rainforest resulted in a breach of these fundamental rights of the 25 youthful plaintiffs (aged 5-26). In finding this connection, the Court also found that the Colombian Amazon was a “subject of rights” and should be protected, conserved, and restored which would also help to restore the breaches to the fundamental rights[1].

In a contrasting case, following the ruling of the Royal Courts of Justice in London failing to grant judicial review into the Government’s lack of action on factory farming, Humane Being, an NGO applied to the European Court of Human Rights via the case of Humane Being v The United Kingdom[2]. Humane Being’s challenge, a first of its kind, claimed that the United Kingdom’s Government had breached the rights of its citizens under Articles 2 (right to life), 3 (prohibition of slavery and forced labour) and 8 (right to respect for private and family life) of the European Convention on Human Rights. The breaches were tied to the Government’s alleged failure to address the risks of the current climate crisis, future pandemics and the growth of anti-biotic resistance created by factory farming in the United Kingdom, as well as highlighting the soy feed consumption levels in factory farming which is a key driver of deforestation in the Amazon basin. However, in January 2023, the European Court found that the case was “inadmissible” based on procedure which does not involve a public decision and on the basis that the applicants were not sufficiently impacted by the alleged breaches to claim to be victims of the violation within the provisions of the European Convention.

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Government body failure to mitigate environmental impacts

Increasingly, environmental activists are bringing claims against government bodies for failing to take decisions with biodiversity and climate matters into account. For example, in Dakota Rural Action v U.S Department of Agriculture[3] the case concerned a rule from the US Department of Agriculture’s 2016 Farm Service Agency which exempted medium-sized industrial livestock farms from undergoing environmental and safety reviews before receiving government loans. Animal rights groups challenged the rule on the grounds that it violated proper procedure as it received no public comment before the exemptions were pushed through and risked creating further animal abuses in violation of legislation and risked further concentrated animal feeding operations which not only are bad for the animals but have terrible environmental consequences. The United States District Court for the District of Columbia found that the rule should be vacated.

In September 2023, in the case of Food & Water Watch and Center for Biological Diversity et al v United States Environmental Protection Agency[4] activists brought a claim in the 9th US Circuit Court of Appeals against the Environmental Protection Agency’s decision not to draft stricter regulation regarding mass livestock farming waste, which causes significant pollution in surrounding waterways. Their claim was that the EPA’s current regulation allowed self-reporting of the quantity of waste pollution being discharged into waterways. However, the concern is that the self-reporting regulations mean misreporting is a considerable problem and significantly higher amounts of agricultural waste pollutes rivers and waterways and impacts the agricultural animals kept in the area. The outcome remains to be determined, but if the District Court of Columbia’s ruling is anything to go by, it is likely that the activists will succeed in challenging the regulation.

Breach of law

In both China and the United States, differing approaches were taken when cases relating to the protection of endangered species came before the courts.

In China, the Yunnan High People’s Court in 2020 found that although a hydroelectric dam’s completion was to be indefinitely halted due to the impact on the endangered Green Peacock, the environmental impact assessment which was carried out which approved the planning and building of the dam on the only remaining habitat for the endangered bird, was not breached. This was due to the subjective and objective assessments that should and were carried out.

On the other hand, in the United States District Court for the District of Columbia found in favour of the Center for Biological Diversity against the Secretary of Commerce in a case[5] regarding the breach of the Endangered Species Act and Marine Mammal Protection Act. The Court following found that there was a failure to protect North Atlantic Right Whales from deadly entanglement in American lobster fishing equipment. The finding came after a case was launched on the basis that the legislation was breached due to the failure to comply with the requirements of an incidental take statement which authorised zero incidental deaths of the whales, when there were in fact three expected yearly from the statement and failure to take steps to prevent further danger to the whale population through the unsatisfactory biological opinions obtained.

Where will developments in biodiversity litigation be?

Corporate reporting

Litigation is likely to arise when companies fail to properly report on their environmental impacts with the introduction of new reporting regulations like the Taskforce on Nature Related Financial Disclosures and the potential for the development of Science Based Targets for Nature. While cases might not directly be about biodiversity at this stage, they will have an indirect link to issues impacting biodiversity.

In Rete Legalita per il Clima (Legality for Climate Network) v Intense Livestock Farming Multinational Companies Operating in Italy (2021) the applicants challenged the compatibility of the practice of intensive livestock farming with Italy’s net-zero commitments and requested Italian National Contact Point to mediate between the parties to find a way to encourage the companies to release more information on their environmental and biodiversity related impacts and to adjust their plans and risk assessment methods to reduce methane production, which contributes to global temperature increases, contrary to Italy’s net zero commitments.

Supply chain litigation

A group of non-governmental organisations are suing the French supermarket chain, Casino for violation of the Devoir de Vigilance, Loi 2017-399[6], a law similar to the Corporate Sustainability Due Diligence Directive due to be published by the European Commission in 2024. The law requires French corporates to establish, publish and implement measures to identify risks in their supply chains to human rights, the environment and fundamental freedoms. The organisations have claimed that Casino has failed in its duty of diligence through its beef supply chain, where the three relevant slaughterhouses have been responsible for the deforestation of an area five times the size of Paris from 2008-2020.

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In the complaint before the Italian National Contact Point for the OECD, Survival International Italia ETS v Conceria Pasubio S.p.A and Gruppo Mastrotto, Survival International , Survival International Italia brought claims against the two leather companies on the basis that the leather they source for sale to car manufacturers like BMW and Jaguar Ranger Rover, are linked to illegal deforestation and biodiversity loss resulting from mass cattle ranching, which are degrading an area of land owned by Paraguay’s Ayoreo tribe. Similarly, it is argued that the companies failed to take steps to exclude leather from animals raised in heavily degraded areas from their supply chains. Survival International sought mediation from the National Contact Point to encourage the two companies to stop importing the leather from degraded areas and to disclose information about its due diligence policies. While the central issue is not preventing mass cattle farming for the sake of the cattle, this is, indirectly, a strategic claim to help reduce mass cattle ranching due to the environmental damage it causes, as well as to protect wider biodiversity which is degraded from the negative utilisation of animals.

Novel challenges based on human rights and natural rights

Causes of action now also focus on the individual animals at stake, bringing biodiversity directly into proceedings, rather than as an indirect consideration while climate impacts take centre stage to achieve change for the climate and biodiversity. This can be seen through novel claims such as in The Non-Human Rights Project’s petition before the State of New York’s Supreme Court in Suffolk County on behalf of two chimpanzees, Hercules and Leo who were detained at a university laboratory[7]. The petition was on the grounds of the writ of habeas corpus which would recognise their right to bodily liberty and thus their right to legal personhood; they could then have been released to a sanctuary. This was the first ever use of habeas corpus, the right to appear before court to contest their unlawful detention or imprisonment, for an animal claimant. By recognising that Hercules and Leo were unlawfully detained would recognise their right to bodily liberty, a fundamental right, which would have made them rights holders or legal persons in the eyes of the law. While their case was ultimately unsuccessful, it is the first of multiple cases trying to establish the right to bodily liberty for animals suffering in captivity and brings to the forefront the impact that humans have on captive animals.

Litigation going forwards

While courtrooms start to grapple with the elephant in the room, the outcomes of COP15 and the requirements of the Kumning-Montreal Global Biodiversity Framework likely to be heavily monitored alongside the introduction of new biodiversity centric reporting regulations and regimes means that more potential pathways for litigants looking to protect biodiversity are opening up and we should only expect more litigation against a wider variety of economic and corporate actors brought on behalf of, or by, the natural world.

[1]Demanda Generaciones Futuraas v Minambiente [2018], 11001-22-03-000-2018-00319-01 [2] Humane Being v The United Kingdom ECtHR, 26 July 2022 (European Court of Human Rights) [3] Dakota Rural Action v U.S Department of Agriculture, U.S. District Court for the District of Columbia, No. 1:18-cv-02852 [4]Food & Water Watch, Center for Biological Diversity et al v United States Environmental Protection Agency, 23-2146, United States Court of Appeals for the Ninth Circuit (2023) [5]Center for Biological Diversity, et al v Gian Raimondo and Maine Lobstersmen’s Association Civil Action NO 18-112 (JEB) [2022] [6]Envol Vert et al. v Casino Guichard Perrachon S.A. (filed 2021 in the Saint-Étienne Judicial Court on 2 March 2021) [7]The Non-Human Rights Project Inc., on behalf of Hercules and Leo v Samuel L Stanley JR M.D, as President of Stony Brook University.