Environmental Groups and Legal Expertise

Front matter

Environmental Groups and Legal — Expertise

Shaping the Brexit procéss

Carolyn Abbot and Maria Lee |

Contents

Table of legislation and draft legislation Table of cases

List of abbreviations Acknowledgements scope, meaning and method

125 148 174

Chapter 1 Law and legal expertise for Brexit-environment: scope, meaning and method

Our purpose in this book is to explore the ways in which environmental NGOs use and understand law and legal expertise. We scrutinise the activity of environmental groups through a case study of Brexit’s environmental implications, and the development of the UK Environment Bill, especially Part 1 of the Bill, entitled ‘Environmental Governance’. Part 1 was developed expressly in response to the enormous impact of leaving the EU on UK environmental law. Although we conclude that Brexit created special opportunities and demands for legal expertise, our detailed analysis of this unusually law-heavy, and anomalously politically open, case study provides rich lessons on what NGOs ‘do’ with legal expertise, and why, and what legal expertise might do for them.

We set the scene for the rest of this book in chapter 1, outlining issues that underpin subsequent discussions, from the diversity of the environmental NGO sector in the UK, and the characteristics of key groups such as Greener UK, to the theoretical material developed in later chapters. Our work is based on literature review, the analysis of documents published by environmental NGOs, and semi-structured interviews with 17 individuals from different backgrounds who were engaged with the Brexit-environment debate.

Chapter 2 NGOs, lobbying and legal mobilisation

Lobbying and advocacy, terms which we use interchangeably to mean direct interactions with decision-makers, have been the main approach to the Brexit-environment debate by environmental NGOs. In this chapter, we provide insights into the complex and wide-ranging literature on NGOs, lobbying and their use of law (‘legal mobilisation’).

A number of important factors shape NGO activity. The literature on ‘political opportunity’ explores the multitude of factors external to an xxii environmental group that influence its approach to social change. It focuses especially on those factors that determine the space for NGOs in decision-making fora, and the receptivity of decision-makers to NGO demands. The concept of legal opportunity’ emerged from the political opportunity literature to embrace important features of the legal, political and social environment, which either limit or incentivise legal mobilisation. As we explore further in chapter 3, environmental NGOs have been operating in a complex and ever-changing web of political opportunities during our period of study.

Factors internal to the NGO movement are also crucial in shaping NGO activity and impact. Drawing on our interview data, we argue that legal expertise is thinly dispersed across the sector (with the obvious exception of ClientEarth), partly because of the financial cost of legal expertise. Organisational identity, ideas and values are also important to the availability and use of legal expertise in the environmental NGO community. An organisation’s understanding of itself, and of law, is likely to be reflected in investment (or not) in law. In a self-perpetuating cycle, investment in legal resource determines the legal expertise in an organisation, which reverberates in the understanding of law, back to how much investment is thought necessary.

Chapter 3 Brexit and the journey to the Environment Act - interrupted

Groups seeking to influence post-Brexit environmental law and policy have faced an extraordinarily dramatic and dynamic political context. In this chapter, we recount the Brexit-environment saga from the referendum in June 2016 to a world responding to pandemic Covid-19 in June 2020. This period has seen three Prime Ministers, five Secretaries of State for the Environment and two General Elections. Government has veered from having no majority in parliament, to a working majority of 87 seats. Towards the end of our case study, Government and Parliament had to begin looking for new ways of working within and beyond Covid-19 ‘lockdown’.

We explore the political and legal opportunities available to environmental groups in this period, and identify hybrid political-legal opportunities, which are new to the literature. We highlight five elements of the Brexit process, overlapping and non-exhaustive, which have shaped the behaviour of environmental advocates: the relationship between parliament and executive, and the extraordinary shifts of power between them; the crucial legislation, and colossal amounts of government and parliamentary activity necessary to exit the EU; the increasing electoral significance of the environment for the governing Conservative Party; Secretary of State Michael Gove’s adoption of a ‘Green Brexit’ rhetoric, underpinned by an ‘equivalence’ and ‘governance gap’ framing; the technically as well as politically demanding nature of Brexit.

The complex public drama of Brexit highlights the difficulties of generalising about NGO advocacy, but may also illuminate the use and appreciation of law and legal expertise more clearly than business as usual. Looking at our material through the lens of political, legal and hybrid opportunity confirms the emphasis of the literature on the partial shaping of NGO activities (in our case the use of law and legal expertise) by external factors. For much of the period of our case study, certainly between the two General Elections in 2017 and 2019, political opportunity opened doors for environmental groups, and a different set of opportunities would have led to different results, in terms of what NGOs did, what they achieved, and what we find in the rest of this book.

But political opportunity is complex. It shifts rapidly, and in different ways simultaneously hampers and enables environmental groups. Agility is crucial for environmental groups seeking to influence those with power.

Chapter 4 Law and legal expertise

In this chapter, we complicate our central organising concept of ‘legal expertise’. There are many, diverse literatures on what ‘expertise’ is, its strengths and weaknesses, and what experts (expertise embodied) bring to the table. There is also a vast literature on the legal profession, what (expert) lawyers do and should do. We learn from these literatures that ‘objectivity’ is elusive, and idiosyncratic values and understandings of the world intrude into expert assessments. This undermines claims that experts are uniquely qualified to make decisions. Further, an overemphasis of technical legal debate may have on occasion rendered crucial normative disagreement around Brexit-environment inaccessible.

We do not suggest that legal arguments are more important than arguments based on other forms of expertise, or on values. However, notwithstanding pockets of impressive legal expertise in the sector, our research suggests an undervaluing of legal expertise by environmental groups, and ambivalence towards legal specialisation. The diversity of the ‘legal’ in the Brexit-environment debate (from environmental law in all its diversity, to constitutional law, to trade law, etc.) has been extraordinary. Lawyers and non-lawyers alike may have underestimated xxiii xxiv just how difficult it is for ‘generalists’ to engage with this complexity and diversity.

The availability of (expert) resources and an organisations understanding of expertise are mutually reinforcing: resources are not just a practical limit on what expertise is available, but spill into the very understanding of what constitutes expertise. The expertise available shapes not only what NGOs do, but also what they think they ought to do, and hence what (expert) resources they think they need. For as long as legal expertise is very thinly spread across the sector, it is hard to make the case that more is needed.

Chapter 5 Mobilising law in practice

We have been struck by the range of activities carried out by relatively few legal experts across even the largest organisations. Contributing to shaping advocacy is far from their priority, with case work and corporate work dominating, and litigation playing the starring role.

Legal expertise can make a number of contributions to advocacy. Understanding both the detailed implications of law, and the overarching frameworks and institutions that govern outcomes, can provide a different way of seeing the world, and a different way of changing the world. Law and legal experts play a significant role in shaping the rules of the social and economic game, in determining the way things get done. Many of our participants emphasised the authority and power of legal argument and saw legal expertise in environmental groups as an important equaliser. Law is one of the approaches available to convince influential audiences, and if government and other actors use legal expertise, environmental NGOs must too.

Legal expertise makes limited contributions to strategy and leadership within environmental NGOs, playing mainly a supportive role. Whilst we see indications of change, it is surprising and revealing that our participants did not see strategic leadership as a role for legal expertise: this is a sophisticated and well-resourced sector, dominated in practice by complex regulation, and our sample of interviewees is sensitive to law. The relative absence of legal expertise in leadership resonates again with the mutually reinforcing limitations on legal expertise in the community. Less legal expertise in the strategic brain of environmental groups both contributes to and reflects a relative absence of highly experienced legal experts in environmental groups; and over-stretched legal capacity feeds out of and into a relatively weak engagement with the need for, and importantly the potential of, legal expertise.

Alongside a merely patchy interest in legal expertise, however, we have witnessed significant, skilful legal input into the public debate on Brexit-environment. We conclude from this that there is genuine, if under-developed, recognition of the importance of legal expertise, and that the sector impressively mustered its capacity in a crisis. Collaboration, discussed in the next two chapters, played a central role in that. We share the sense of our interviewees that legal expertise had considerable, if not uniquely significant, influence in the Brexit-environment debate. Combining this chapter’s exploration of the heavy use of law with the sector’s influence as a whole (chapter 7) reinforces this conclusion.

Chapter 6 Lobbying in coalition

Collaboration is an important part of our Brexit-environment story. We focus on Greener UK, a coalition established in 2016 with the sole purpose of working on the impact of Brexit on the environment. We think it is relatively uncontroversial to describe Greener UK as being at the centre of governance work on Brexit-environment. Working in coalition is, of course, not new to the sector. But our rich empirical data points to the fact that the sector’s collaboration through Greener UK has been different, even special.

Working in coalition can have multiple advantages. We are especially interested in the way that drawing on collective resource has not only led to an efficient pooling of legal expertise, but has also deepened that expertise, creating more than the sum of its parts. But collaboration is challenging. Although collaboration creates efficiency in the pooling of resources, it has its own costs: the coalition itself needs to be resourced. The alignment of interests can be difficult, but if a coalition is to achieve its aims, it is vital that its member organisations reach consensus on goals and approaches. NGOs often compete (for recognition, funding, membership, etc.), so this is no easy task and can imply considerable profile sacrifice for individual organisations.

Chapter 7 Greener UK: influence and collaboration

Greener UK has been a crucially important actor in the environmental NGO sector’s response to Brexit-environment. Our interviewees expressed almost unanimous, and in most cases unconditional, support for the work that Greener UK has done in shaping the post-Brexit environmental law landscape.

Identifying the ‘success’ of lobbying is extraordinarily challenging. Even what constitutes ‘success’ is likely to be contested. Establishing

XXV xxvi causation is extremely difficult, because of the significant external factors, explored in earlier chapters, at play in the Brexit process, and because of the many other actors who contributed to the debate alongside environmental NGOs. Having said that, we explore the influence of Greener UK on the Brexit-environment debate and the development of the Environment Bill, drawing on both our analysis of public documents produced by environmental NGOs, and the subjective perceptions of our interviewees. Although there have been tensions and unachieved objectives, and their approach might be contested, Greener UK has been broadly successful across two dimensions.

First, many elements of the Environment Bill (arguably even the existence of any Bill at all) can be traced to the work of Greener UK and its allies. And second, Greener UK has ‘worked’ as a collaboration: holding together over a long and difficult period, with constant activity as a coalition, and constant contributions from the member organisations. This was a strong and recurring theme from our interview data, and we identify three particular features of the Greener UK collaboration that have contributed to this dimension of success. First, consensus around the broad issues associated with Brexit, and the enormous salience of Brexit for the sector. Second, the careful attention to the working relationships and trust between the individuals involved. And third, the direct resourcing of Greener UK itself, making individuals responsible for ensuring that the collaboration worked.

There is a clear appetite for collaboration in the sector. Whatever happens next, the lessons of Greener UK should be learned and taken forward.