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New Research Proposes Environmental Liability Litigation as Means to Prevent Biodiversity Loss

July 2021

(Washington, D.C.): An international team of scientists, lawyers, and economists are proposing the novel use of environmental liability lawsuits to tackle biodiversity loss, including illegal wildlife trade. These lawsuits could hold wildlife traders responsible for the harm they cause—not only to individual plants and animals, but also for the cascading impacts on species survival, human wellbeing, and ecosystems.

Lead author Dr. Jacob Phelps from Lancaster University’s Environment Centre said: “Across the world, we use fines and prison sentences to punish wildlife crimes, but they do little to restore biodiversity. It is time to stop focusing only on punishment, and start doing more to heal the harm caused by wildlife crime. This is a significant opportunity for conservation.”

Although many countries allow lawsuits to hold responsible parties liable for the environmental harm they cause, these legal remedies have rarely been used to address key drivers of biodiversity loss, including illegal harvest, use, and trade. Liability litigation is a potentially groundbreaking conservation strategy to remedy harm to biodiversity by seeking legal remedies such as species rehabilitation, public apologies, habitat conservation, and education, with the goal of making the injured parties “whole.”

“Environmental liability laws are already important for addressing large-scale pollution in many countries, with courts ordering responsible parties to clean up the contamination, restore injured resources and compensate for interim losses from the time of the injury until resource recovery,” explains Dr. Carol Adaire Jones, Visiting Scholar at the Environmental Law Institute and a contributing author. “Our paper explains how we can apply similar methods to remedy biodiversity loss.”

As explained in the paper, environmental liability litigation is operationalized along three dimensions:

(1)    defining the harm that occurred;

(2)    identifying appropriate remedies to that harm; and

(3)    understanding what remedies the law and courts will allow.

The paper illustrates how the framework would work in action via a hypothetical lawsuit against an illegal orangutan trader in Indonesia. In their example, the conservationists’ expertise is essential to defining the harm and identifying appropriate remedies, and could more actively contribute to strategic, science-based litigation. Engaging such expertise can help identify priority contexts, target defendants responsible for egregious harm, propose novel and meaningful remedies, and build new transdisciplinary collaborations.

The paper is published in a recent issue of Conservation Letters and is available for free download.

The paper was funded by the U.K. government through the Illegal Wildlife Trade Challenge Fund.

Dr. Jacob Phelps, jacob.phelps@gmail.com, and Dr. Carol Adaire Jones, jones@eli.org, are available for interview.