Why lawyers have a part to play in sustainable development

The way in which lawyers – and the law – can enhance sustainable business should be explored, says Thomas Bourne


The legal system plays a key role in governing sustainable business. Photograph: Chris Young/PA

When it comes to sustainable business, one attribute that marks out the leaders from the followers is the courage to push boundaries.

One fundamental facet of sustainable business innovation is the law; yet its complex and ever-changing network of narrow pathways, shortcuts and barriers often does more to stifle than it does support change. For example, the regulatory burden in respect of waste processing is heavy and can prevent, or at least discourage, businesses from finding innovative commercial uses for waste materials. If we are ever to reach a fully sustainable, or restorative, economy this must change and there is good work already being done by the industry in partnership with others to bring the necessary legislative and regulatory change to bear.

In the meantime, businesses that want to create more sustainable ways of working face a choice. In staring down the barrel of legal challenges and uncertainties, do they engage to find a way forward or do they back away and settle for familiar ground? All too often the latter choice is made, but this can be due more to a perception of the law being in the way than a reality. A good example that is currently being debated is collaboration and co-operation. Many are of the view that this is vital to innovation and the evolution of sustainable business trends. However, faced with the risk of falling foul of current competition laws, some are backing away from potentially fruitful discussions.

The recent example of Unilever and Proctor & Gamble, who were fined £281m between them after collaborating on the reduction of packaging in the detergent industry, is a sobering warning. According to the EU Competition Commission’s report, the companies had agreed not to decrease prices when making their packages smaller and even agreed later to raise prices. It therefore held that they were colluding on the price of washing powder. Corporate giants such as these would have no shortage of access to legal advice to mitigate the risks of falling foul of the legislation. This example indicates the fine line that needs to be trodden even where the intention of the collaboration is to move an industry towards more sustainable goals.

Getting advice from lawyers who understand sustainability issues will be the key to unlocking these opportunities.

We have been working with Forum for the Future, which believes that, amongst businesses, the in-house legal team will have a key role to play but that currently they tend to act as a brake on innovation. In order to take a more proactive stance, they need to work with sustainability teams on where they are safe to proceed, what they must avoid, and where they may need to make sure they get further legal advice.

With a genuine understanding of what sustainability means for businesses, lawyers have an opportunity to shake off their sometimes negative image as the ‘no-police’ and realise a more positive role as ‘strategic enablers’ of an organisation’s growth. For example, we were recently successful in securing changes to the Environment Agency’s approach to waste for a client who processes waste into materials capable of competing with synthetic and virgin resources. This meant that our client’s customers were not themselves required to have environmental permits or register exemptions in order to use the recycled material – levelling the regulatory playing field for recycled materials and providing the client with a commercial edge.

In fact, corporate and commercial law touches business across the triple bottom line, from employment and corporate governance issues, to energy and waste management, to tax and financing models, and has a fundamental influence on the development of key sustainability themes such as collaboration in the supply chain or on intellectual property. Lawyers that do not put sustainability in a box marked ‘someone else’s problem’, but understand how it connects with the bigger picture, have a genuine opportunity to help unlock sustainable business opportunities for organisations with an ambition to lead change and the appetite to see what is possible.

Source / Fuente: www.guardian.co.uk

Author / Autor: Thomas Bourne

Date / Fecha: 16/02/12

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