King's College London

What roles can law - in particular environmental laws – play in advancing a sustainable human future, one of humanity’s most urgent priorities in the 21^st century? This is the overarching question inspiring this new Transnational Law Institute research project led by Professor Octávio Ferraz.

The main aim of the project is to survey the normative landscape of laws and regulations aimed at protecting the environment (including the protection of biodiversity, measures to tackle pollution of the air, water and earth and measures to address climate change) across the world from a comparative and interdisciplinary perspective and with a focus on “law in action”, that is, on the effectiveness of the normative regime and the factors that facilitate or hinder its effectiveness. According to the report Environmental Rule of Law, First Global Report (UN, 2019):

Environmental laws have grown dramatically over the last three decades, as countries have come to understand the vital linkages between environment, economic growth, public health, social cohesion, and security. As of 2017, 176 countries have environmental framework laws; 150 countries have enshrined environmental protection or the right to a healthy environment in their constitutions; and 164 countries have created cabinet-level bodies responsible for environmental protection. These and other environmental laws, rights, and institutions have helped to slow—and in some cases to reverse—environmental degradation and to achieve the public health, economic, social, and human rights benefits that accompany environmental protection. …Too often, implementation and enforcement of environmental laws and regulations falls far short of what is required to address environmental challenges. Laws sometimes lack clear standards or necessary mandates. Others are not tailored to national and local contexts and so fail to address the conditions on the ground. Implementing ministries are often underfunded and politically weak in comparison to ministries responsible for economic or natural resource development. And while many countries are endeavouring to strengthen implementation of environmental law, a backlash has also occurred as environmental defenders are killed and funding for civil society restricted.

What laws are in place? Are they well-conceived to achieve their protective aims? Do they work in practice? What social, economic, political and cultural factors hinder or facilitate their effectiveness? What role, negative and positive, do institutional operators such as politicians, the police, prosecutors and judges play? These are some of the more specific questions the project aims to shed light on.

Our project adopts a broad conception of sustainable development that includes both environmental sustainability and human well-being. It rests on the idea that humans are equal in dignity, consideration and respect, having thus an universal right to an opportunity to achieve well-being. The challenge is how to achieve wellbeing for all within the possibilities of our planet. The current global production model has proven not to be fit for the purpose of sustainable human development as it both depletes nature and leaves a significant part of the population unable to achieve a decent level of wellbeing. A different model is therefore necessary, and the role of law can be significant both in facilitating and hindering such transformative project towards sustainability.

Continuing the TLI’s tradition of partnering with people and institutions within and outside the legal world and within and outside KCL, this project will seek to work with collaborators from across the globe interested on these questions and approaching them from a variety of perspectives.

Case Study on Brazil

The first country to be explored in The Laws of Sustainable Development project will be Brazil. As the home of the largest tropical forest on the planet (the Amazon), one of the most advanced environmental law regimes of the world and a history of both successes and failures in implementing this legal regime, Brazil is well placed to kick off our project and provide a case study on which we can build on when extending our project to other countries. The initial focus will be research and analysis of Brazil’s normative framework for the protection of the environment, lauded as one of the most advanced in the world, and the challenges it faces to be effective, in particular in the current political environment. There is currently frantic activity and confrontation in all spheres of power in Brazil in the field of environmental protection, with executive decrees, legislative initiatives and litigation with different groups fighting over environmental regulation, some attempting to protect and strengthen the normative framework, others to weaken it. Among the most concerning developments is a package of five critical legislative bills currently going through the Brazilian parliament dubbed by environmentalists the “Death Combo” as, in their view, they will weaken considerably the protection of the environment in Brazil by, among other things, allowing mining in indigenous lands and enabling the eviction of indigenous peoples’ from their ancestral lands. Among positive developments are legislative bills trying to include access to potable water among the constitutionally guaranteed rights, to include climate security as a constitutional goal, and to establish a goal of zero deforestation as a state duty.

The first stage of the project will be developed through a set of fieldwork visits to key areas in the Amazon which are particularly affected by the normative framework. As well as Prof. Octávio Ferraz, the team will include experienced environmental journalist Luís Patriani, a contributor to leading environmental outlets such as Mongabay and National Geographic and author of the book Rio Paraíba do Sul. The history of a surviver river (Horizonte, 2010). The team will also include an experienced environmental photographer and camera man. The material collected will be used in academic outputs and journalistic pieces (articles and video pieces) to be published in the TLI’s webpage and offered to potential news outlets such as Mongabay, National Geographic, Reporter Brazil and others.