Biodiversity Litigation By GuillaumeFuthazar, SandrineMaljean‐Dubois and JonaRazzaque (Eds.) Oxford University Press. 2022. 448 pp.

‘If the rise of climate change litigation is correlated with the development of international climate law, can we find a biodiversity litigation correlated with the development of international biodiversity law?’ (at 5). This question encapsulates the motivation behind the research focus of the edited volume Biodiversity Litigation, which aims to conceptualise biodiversity litigation for the first time and to establish it as a separate field within environmental litigation, akin to climate change litigation. The editors construct biodiversity litigation in a broad manner, along the lines of the Convention on Biological Diversity (CBD), as ‘any legal dispute at the national, regional or international level that concerns conservation of, sustainable use of and access and benefit-sharing to genetic resources, species, ecosystems and their relations’ (at 15). In the face of international biodiversity law's obvious failure to halt the decline of biodiversity, the editors are making the wager that ‘[b]iodiversity litigation has the potential to strengthen the effectiveness of international biodiversity law and to push states and businesses to commit themselves further to tackle the current biodiversity crisis’ (at 15). The different chapters offer a review of biodiversity litigation in various jurisdictions, as well as an analysis of case law in international courts, dispute settlement bodies and the Court of Justice of the European Union (CJEU). While the volume does not attempt at giving an exhaustive account of biodiversity litigation, it nevertheless offers a first step to understand trends in biodiversity litigation, to reframe biodiversity litigation in the context of environmental litigation and to understand how international biodiversity law might impact biodiversity litigation. The editors use a comparative approach to address two main research questions. First, ‘what is the observable influence of IBL [international biodiversity law] in biodiversity litigation?’ (at 28). Second, ‘have we witnessed a paradigm shift in biodiversity litigation?’ (at 28). While the first question deals with the direct and indirect influence of international biodiversity law on biodiversity litigation, the second question aims at characterising the legal nature of biodiversity litigation, as well as the way in which biodiversity litigation has evolved. Chapters 2 to 10 address these questions through contributions from different authors discussing biodiversity litigation in their national jurisdictions. These chapters focus on megadiverse countries—namely countries that harbour the majority of Earth's species and high numbers of endemic species—in which the abundance and uniqueness of biodiversity are likely to lead to legal disputes with crucial outcomes for biodiversity. These countries include but are not limited to Australia, Brazil, China, India, South Africa and the United States (US). The chapters also cover Global North countries that are particularly active in international biodiversity governance, such as Canada, France and the United Kingdom (UK). Additionally, Chapters 11 and 12 deal with case law at the international level, focusing on international courts and dispute settlement bodies, and the CJEU respectively. The final Chapter 13 draws on these case studies to discuss trends in biodiversity litigation more generally. Hence, the concluding chapter, written by the editors of the volume, plays a central role for grasping the book's overarching and more general arguments. The volume's first research question focuses on the influence of international biodiversity law on biodiversity litigation. While Futhazar and colleagues acknowledge that there is a large variation between the different case studies—for instance, Snape's Chapter 10 on the US concludes that ‘international law, and specifically international biodiversity law, plays an exceptionally minor role’ (at 281), whereas Kodiveri's Chapter 7 on biodiversity litigation in India shows how various international legal instruments are used in domestic litigation cases—they conclude that direct legal influence of international biodiversity law is generally limited. According to this conclusion, influence is greater if it is not conceptualised as the direct application of international biodiversity law, but rather considered as the transposition of international biodiversity law at the national level, or as the interpretation of other laws in the light of international biodiversity law. Zhu's Chapter 5 on biodiversity litigation in China offers interesting insights in this respect, when discussing the Supreme Peoples' Court's ‘universalism and attachment to scientific objectivity’ (at 129), which requires judges to rely on lists formulated by international institutions, such as the appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, to determine whether a species is precious or endangered. The second research question focuses on the characterisation of biodiversity litigation. As part of answering this question, several of the chapters discuss the role of rights discourses. Young and Vines's Chapter 2 on Australia finds that this may be an opportunity for future litigation, but that rights-based strategies have not played an important role so far. Similarly, Stookes's Chapter 9 on the UK concludes that human rights discourses play a less significant role, and that, where human rights arguments are used, this often happens in contexts where biodiversity protection measures allegedly interfere with human rights. In Chapter 12 on international biodiversity litigation, Maljean-Dubois and Morgera discuss inter alia the engagement of the Inter-American Court of Human Rights with international biodiversity law and the right to a healthy environment. They conclude that there is an increasing understanding of the interdependence between human rights law and biodiversity law, which may give rise to future litigation cases substantiating international biodiversity obligations. Chapter 4 on Canada by Perron-Welch and colleagues also includes a discussion of biodiversity litigation cases brought by Indigenous groups to protect their constitutionally guaranteed rights, such as the integrity of the traditional way of life which depends on undisturbed land and fauna. They conclude that the assertion of Aboriginal rights under the constitution has been the most powerful driver for change in governing the protection of biodiversity in Canada. Finally, Kodiveri's Chapter 7 shows how biodiversity litigation in India has been an area of contestation between different forms of environmentalism, namely exclusionary conservation, environmentalism of the poor, which pushes for more inclusive decision making in conservation, and ecocentrism. However, in the concluding Chapter 13, Futhazar and colleagues find that none of the case studies explicitly address biodiversity litigation cases that involve the rights of nature. This lack of engagement with cases involving the rights of nature has since been addressed by Rodríguez-Gavarito and Boyd's article ‘A Rights Turn in Biodiversity Litigation?’, in which they establish an original database of rights-based biodiversity litigation cases and argue that these cases blur the lines between individual and collective human rights and the rights of non-humans. 1 Futhazar and colleagues conclude their discussion of rights discourses in biodiversity litigation with the following statement: It may very well be that the topic of non-human rights is what sets biodiversity litigation apart from other forms of environmental litigation as it highlights a mix between philosophical, political, and scientific considerations in our understanding of the environment. However, even though these cases attract their fair share of attention, this might create a distortion in how we envision biodiversity litigation. In most countries, and at the international level, the very notion of non-human rights remains foreign. This does not prevent biodiversity litigation from taking place and from innovative approaches to sprout. (at 387) Futhazar and colleagues conclude that the most common type of biodiversity litigation cases focuses on protected areas or protected species and often occurs in the context of large infrastructure projects. This issue is discussed in Born and Schouken's Chapter 11 on biodiversity litigation before the CJEU, in which they find that most biodiversity litigation cases focus on specific cases of destruction of nature and are reactive, which leaves more systemic challenges to conservation unaddressed and gives rise to a call for more proactive future biodiversity-related lawsuits. One example of addressing the shortcomings of the current piecemeal approach is given in Chapter 11, which discusses jurisprudence regarding the Dutch nitrogen policy and underlines its potential of holding national authorities accountable for their large-scale failure to stop the degradation of protected nature. Similarly, Snape's Chapter 10 on the US concludes that ‘litigation is generally less successful in advancing proactive long-term conservation’ (at 269) and that legal enforcement does not address larger biodiversity considerations or embedded biodiversity problems. According to this conclusion, biodiversity litigation has not been able to protect biodiversity at a larger scale; thus, long-term solutions to address wildlife extinction require political action. Besides, the editors find that the existence of litigation on access to and the sharing of benefits of genetic resources seems to be a feature of countries such as Brazil or India in which biodiversity is exploited for commercial purposes. They also note that ‘numerous cases sit at the outer limits of biodiversity litigation, thus challenging the conceptualization of this litigation trend’ (at 365). For example, Snape's Chapter 10 on the US engages with litigation cases on private land conservation under the tax code, Lubbe's Chapter 8 on South Africa includes a discussion of cases on animal welfare, and Chapter 3 on Brazil by Costa de Oliveira and colleagues engages with the role of animal rights. In stating that, for instance, cases on animal rights are situated at the outer limit of biodiversity litigation, Futhazar and colleagues suggest that there is a spectrum of biodiversity litigation cases with some being at the centre and others being at the periphery. However, the conceptualisation of biodiversity litigation in the volume is very broad and, as such, remains rather vague and does not allow for drawing a clear limit as to what kinds of cases are included or excluded, or would be at the centre or the periphery, and why. As part of characterising biodiversity litigation, the editors also draw conclusions about the legal nature of biodiversity litigation. They distinguish punitive biodiversity litigation cases from remedial biodiversity litigation cases. The former are mostly criminal law cases in which the State or one of its institutions acts as a prosecutor. The latter, remedial cases, can be classified into different types. First, there are remedial litigation cases that only involve public actors. These are most common at the CJEU, as shown by Chapter 11 by Born and Schoukens, which includes a discussion of infringement cases brought by the European Commission against Member States. Second, there are remedial biodiversity litigation cases that are described as private against public. This concerns cases that are brought by nongovernmental organisations (NGOs) or individuals and are either rights-based or concern the alleged illegality of an action or policy with regard to existing biodiversity-related law. These cases are the most common type of biodiversity litigation cases. Third, there are remedial cases between private actors. These are most often cases that are brought by NGOs against large companies. When discussing the role of different actors, the editors stress the importance of civil society in sharing knowledge and information, designing litigation strategies, suggesting remedies and being involved in biodiversity-related negotiations. In the concluding Chapter 13, Futhazar and colleagues note, however, that ‘it appears that there is no fundamental difference with environmental litigation’ (at 364) and that biodiversity litigation shows the same patterns as environmental litigation. The question about the relevance of the concept of biodiversity litigation is also discussed in Futhazar and Dermenghem's Chapter 6 on France, in which they conclude that ‘it seems that biodiversity litigation is undiscernible from environmental litigation in the discourse of scholars and practitioners alike’ (at 174). The question of what sets biodiversity litigation apart recurs throughout the different chapters, for instance in discussions about rights discourses and non-human rights, as well as when analysing cases at the outer limit of biodiversity litigation. In their conclusion, the editors acknowledge that biodiversity litigation does not have a strong legal identity yet, that ‘it is often difficult to differentiate biodiversity litigation cases from other environmental cases’ (at 393) and that ‘it is basically a relabelling of part of environmental litigation’ (at 393). The volume set out to establish biodiversity litigation as a new field of environmental litigation. However, it falls short of separating biodiversity litigation from the existing field of conservation and environmental litigation, and the specificity of biodiversity litigation remains unclear. This problem partly stems from the broad conceptualisation of biodiversity litigation that serves as a basis for the volume. It encompasses a diverse array of environmental litigation under the umbrella of biodiversity litigation, including issues like animal rights, access and benefit sharing of genetic resources, rights of nature, Indigenous and local peoples' rights, human rights-based cases and cases concerning protected areas and species. Besides, the editors never clearly articulate why they think that existing environmental litigation proves insufficient to address the problem of biodiversity loss. Consequently, it remains unclear what problem or shortcoming of environmental litigation would necessitate or drive a specialisation of biodiversity litigation as a field of environmental litigation with distinct practices and strategies. This raises the question of the added value of establishing biodiversity litigation as a separate field of environmental litigation. Futhazar and colleagues argue that ‘[r]ecognizing biodiversity litigation as a concept could help bring more attention to an environmental crisis that is overshadowed by climate change’ (at 393) and that ‘there is no formal reason why the concept of biodiversity litigation could not be used as a parallel to the concept of climate litigation’ (at 395). According to them, promoting biodiversity litigation could ‘open the door to creative legal thinking, by relying on novel concepts and principles’ (at 395). Yet, this assertion leaves unresolved what those novel concepts and principles could be, especially given the editors' reluctance to rely on the rights of nature as a core driver of biodiversity litigation. It also leaves open in which way those concepts and principles would indeed be novel, given the difficulty of delineating biodiversity litigation from other forms of environmental litigation. The editors' discussion of climate change litigation as a potential inspiration for the future development of biodiversity litigation may nevertheless offer a way forward. They name some examples of biodiversity litigation cases that ‘try to address what is perceived as a failure on the part of public authorities or companies’ (at 396), in a way that is similar to strategic climate change litigation cases. The editors argue that these cases can draw inspiration from climate litigation and may be reinforced by the adoption of the post-2020 Global Biodiversity Framework under the CBD. 2 This argument has since been taken up by other publications, which discuss that biodiversity litigation cases may build on and apply lessons from (rights-based) climate change litigation cases, 3 that the CBD's objective to halt biodiversity loss is justiciable and could give rise to biodiversity litigation, 4 and whether arguments made in climate change litigation cases could be transferred to potential future biodiversity litigation cases. 5 However, whether this will indeed give rise to a clearly distinguishable field of biodiversity litigation with distinct strategies and practices, akin to climate change litigation, remains to be seen and may offer a starting point for future research.

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