Q&A with Estelle Dehon: Mitigating damages

23rd September 2021

Web p28 29 Estelle Dehon CREDIT Richard Gleed

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Simon Wicks

Estelle Dehon offers her thoughts on the Environment Bill, environmental justice and the need for more thorough guidance on emissions. Simon Wicks asks the questions

Estelle Dehon grew up in South Africa and studied law at Oxford University before being admitted to the English Bar in 2006. A specialist in planning, human rights, electoral and data law, she has also become a prominent environmental advocate, representing communities opposed to carbon intensive developments. She has argued the case against fracking in Lancashire, coal mining in Cumbria and the expansion of Bristol Airport.

What are your thoughts on the Environment Bill that’s going through Parliament?

I’m impressed by what I’ve heard from Dame Glenys Stacey when speaking about how the Office for Environmental Protection will work and the extent to which she recognises the need for independence from government. But the environmental regime came with at least some possibility of fines for failure, and that has been removed.

It’s excellent that our Environment Act will be embedding high level principles of environmental law. We can have a debate about which ones, but the main ones are there. The difficulty is going to be how those principles are applied. It’s a bit like the obligation in the Climate Change Act to achieve carbon budgets – the question one asks is: ‘Who is the key entity that bears the obligation?’

So it’s less a problem of the environmental regulations than of their enforcement?

It doesn’t help that many of the bodies who should be doing this work have been defunded. I don’t blame the Environmental Agency for the fact that it’s going to take 100 years to do all the nitrogen testing that needs to happen in order to understand the nitrates in the water. What do you expect? I don’t always agree with the Agency’s decisions, but I understand what happens when you’ve got a resource-poor regulator.

There are issues with access to funding for communities to fight legal cases – something affected by legal aid cuts. How has that affected your work?

I’m acutely aware that the funding structure that’s available for work like mine is essentially crowdfunding, and maybe you’re going to get a grant once in a while. Not everybody is willing to put so much into an area of practice where the funding is precarious. I recognise that there is something in me that has meant I am willing to take those risks and make those decisions. To that extent, my beliefs and my understanding of what’s facing the world have led me to take those actions. However, it has meant that I have been involved in some of the most interesting cases that have come to the courts in the last four years.

“Many of the bodies who should be doing this work have been defunded”

How important is access to justice for communities concerned about the environmental impacts of developments and policies?

Absolutely crucial. Our system tells communities that their voice will be heard, so they expect it to be, and then it is very disenfranchising when communities realise that it is not necessarily the case that their voice will be heard unless they fit themselves into certain ways of presenting what they have to say. My job with the community is to translate the key concerns that are animating them in a way that resonates within our legal system.

Communities also recognise that if they suffer a significant injustice, they want to be able to take action, despite the fact that the idea of going to court should be terrifying. Part of my job is to make an experience which is quite alienating and very difficult as feasible for them as possible. That takes a lot of work, and it’s very concerning that the areas of funding that are available for that type of work are fewer and fewer, and are more and more precarious. The only reason I can do the work I’m doing is because of the Aarhus costs protection.

Should the Intergovernmental Panel on Climate Change’s (IPCC) clarification of the urgency of addressing emissions signal a change in the way we approach new development?

The IPCC estimates that there are just over 10 years’ worth of global emissions at pre-pandemic (2019) levels left for a 50:50 chance of restricting warming to 1.5°C. There is no room for complacency. There is no wriggle room. There is no justification for adopting a lax approach on the basis of lack of scientific consensus – a fully precautionary approach needs to be taken and best practice methods adopted that are most likely to capture the full extent of adverse climate impact from causing additional greenhouse gas (GHG) emissions and the full extent of benefits from preventing or reducing such emissions.

Do the professionals who conduct assessments have sufficiently strong guidance?

IEMA’s own guidance on assessing GHG emissions during environmental impact assessments was important for establishing the principle that all GHG emissions will contribute to climate change and thus might be considered significant. But the guidance could be clearer about the need to assess ‘scope 3’ emissions – for example, for a mine, the emissions from burning the coal; for oil or gas extraction, the emissions from combusting the oil or using the gas. It would also be helpful for the guidance to make it clear that evaluating the emissions from a single project against the whole of the UK’s carbon budget will make almost every project, even the most GHG-intensive, seem insignificant. Much more guidance on evaluation in relation to sectoral emissions and local carbon budgets would be helpful.

There is a real opportunity for IEMA to act and make a serious difference if the guidance is updated and strengthened, given that the Climate Change Committee has recommended that a ‘net-zero test’ be applied in decision-making. Such a test will only work if there are cogent metrics, and part of that is up-to-date guidance.

Are you hopeful that we’ll meet our net-zero targets?

I’m not, because we’re increasingly putting our faith in big technological solutions – they’re baked into the analysis. In order to reach net zero, we’re going to have to be pulling carbon out of the atmosphere, so we’re going to be developing this technology to pull carbon out of the atmosphere – and it’s 2021. The technology is going to take a long time to develop, and we need to be acting now.

I think it’s incredibly important for people in the environmental movement to have a positive message – to say: ‘There are things we can do that are going to be good for people and for the planet.’ But seeing how much time we’ve wasted, seeing all these policies that should be in place that aren’t and seeing that we’re still building all these houses that need to be retrofitted immediately, I’m at a point where I am less optimistic than I have previously been.

Image credit | Richard Gleed


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