Environmental Liability Using civil lawsuits to protect biodiversity and expand the policy toolkit for conservation

The harmful exploitation of resources — including illegal wildlife trade, fishing, and logging — is one of the top two factors devastating global biodiversity and driving species to extinction. It damages rural livelihoods, robs countries of badly needed revenues, and undermines conservation efforts.

Most countries rely on criminal and administrative enforcement to counter illegal wildlife trade. While these responses can impose fines and imprisonment, they are not focused on remedying the environmental harm.

An international group of conservationists, lawyers, and economists, including ELI Visiting Scholar Carol Adaire Jones and ELI Vice President for Programs and Publications John Pendergrass, is now advocating for the use of environmental liability suits to counter the illegal exploitation of resources and protect biodiversity. Unlike criminal and administrative procedures, these suits can hold responsible parties liable for remedying the harm they have caused, through actions including habitat restoration, species protection, public apologies, and education.

Funded by the U.K. Government’s Illegal Wildlife Trade Challenge Fund and led by Jacob Phelps of Lancaster University, the team advocates that conservation liability suits be used strategically against defendants involved in illegal wildlife trade with the financial means to provide remedies. These include corporations and organized crime groups who are held accountable for restorative actions, typically as a complement to criminal prosecution.

In addition to publishing a paper in Conservation Letters, the team released a guide, Pioneering Civil Lawsuits for Harm to Threatened Species: A Guide to Claims With Examples From Indonesia, which is intended to inform NGOs, government officials, prosecutors, academics, and judges.

Prior ELI research highlighted that laws providing a legal right to remedy for a wide range of environmental harms are already in place in many biodiversity hotspots, including Brazil, China, Democratic Republic of Congo, Indonesia, Mexico, and more. However, these laws are seldom used for a number of reasons. In some cases, governance challenges such as corruption may be a factor. Other impediments include a lack of awareness of the law and a dearth of implementing guidance. In particular, one of the problems cited is difficulty in valuing the damages.

To address this issue, the guide builds on what is called the restoration-based approach for valuing claims. This method values damages based on the cost of restoration projects to remedy the harm to biodiversity and compensate for losses incurred until the resources recover, rather than placing a value on the harm done. Following the 1989 Exxon Valdez oil spill and the subsequent passage of the Oil Pollution Act of 1990, the approach was pioneered in the regulations written to implement the OPA, for which ELI's Jones served as lead economist.

In the United States, the restoration-based approach to valuing damage claims — which has been widely adopted for other liability statutes — has been shown to expedite the restoration of resources after a case is resolved. This approach is also more readily transferable to developing countries than putting a dollar value on the harm.

The report guides practitioners and academics through key concepts and procedures for environmental liability lawsuits, including seeking, presenting, and executing legal remedies. The guide, journal article, and related policy resources can be found at conservation-litigation.org.

Cities can reduce food waste through climate action planning

Cities across the country have pledged to reduce greenhouse gas emissions and develop climate action plans that outline the steps they will take to achieve these goals. However, most existing plans contain few, if any, food waste-related actions. A report by ELI in partnership with the Nashville Food Waste Initiative, A Toolkit for Incorporating Food Waste in Municipal Climate Action Plans, provides model provisions for addressing food waste in local planning, enabling cities to reduce both food waste and greenhouse gas emissions simultaneously.

Climate action plans offer an ideal opportunity for cities to address food waste, a major — yet often overlooked — contributor to climate change. In 2019, 35 percent of food in the United States went unsold or uneaten, leaving a greenhouse gas footprint equal to 4 percent of U.S. emissions. Research by Project Drawdown has identified reducing food waste as one of the top three most impactful solutions for reducing greenhouse gas emissions worldwide.

Addressing food waste also garners many benefits beyond climate change mitigation. Reducing wasted food alleviates food insecurity, conserves natural resources, and saves money by decreasing food purchasing and waste disposal costs.

The toolkit provides a menu of options that includes measures to prevent food waste, rescue surplus food, and recycle food scraps. It is intended to facilitate the widespread adoption of food waste provisions in local climate action and sustainability plans by truncating the time and effort that would be required if a municipality had to start from scratch.

In addition to providing model provisions, the toolkit includes links to example provisions in existing sustainability plans. Strategies and approaches highlighted in the toolkit include policies and ordinances, public awareness and education, incentives and funding, leadership and recognition initiatives, and environmental justice-related efforts.

Nature-based solutions minimize the impacts of disasters

Natural disasters pose a huge risk to people, ecosystems, and property — a risk that will only increase with climate change. One solution is to invest in nature-based hazard mitigation strategies, also referred to as natural or green infrastructure. These actions conserve or restore nature, such as wetlands and floodplains, or use green infrastructure projects like rain gardens, all to minimize the negative impacts of natural disasters.

Nature-based solutions can offer a more cost-effective alternative to “gray” infrastructure, which also increases habitat and biodiversity. Recently, a growing number of funding opportunities through the Federal Emergency Management Agency aim to encourage such strategies. However, to date relatively few nature-based projects have been funded with available grants.

Government entities can develop a strong foundation to apply for this funding by including nature-based strategies in their hazard mitigation plans. These plans are required of states, tribes, and locales for certain kinds of disaster mitigation funding, including grants from FEMA. Plans identify natural hazard risks to communities, create goals for hazard mitigation, and outline actions to address risks.

This spring, ELI released Nature-Based Mitigation Goals and Actions in State and Tribal Hazard Mitigation Plans, a study evaluating to what extent plans are incorporating nature-based goals and actions. Based on a review of all 50 states’ mitigation plans and a small subset of tribal plans, the report identifies a range of practices across jurisdictions, and analyzes areas for improvements in developing nature-based strategies. The study also includes specific plan language that could be used by governments in the future.

In tandem, ELI published an accompanying report, Nature-Based Mitigation Goals and Actions in Local Mitigation Plans, based on an analysis of over 100 local hazard mitigation plans. Both reports identify a number of paths to greater use of nature-based strategies. Although many plans include nature-based goals and actions, government entities can focus on planning for realistic prioritization of these projects. Funding, implementing, and monitoring these projects are also important next steps. Among other recommendations, more demonstration projects, including assessing outcomes with data and monitoring, can also exemplify the benefits of nature-based projects and encourage others to follow suit.