Are we all environmental lawyers now?

Why is it that enviromental and climate issues now seem to cut across every area of business and legal practice - and what is the best way to address them? 

On the latest episode of our A Matter of Reputation podcast, Dina Hudson, Lead Consultant (D&I) at Byfield, is joined by Maria O’Loan, Head of Environment and Planning at Tughans LLP, to explore this question.

The discussion also covers: 

👉 How communications, stakeholder engagement and public trust have become central to planning and infrastructure processes and consent.
👉 What "social licence" is, how you can build it, and why it's increasingly essential when engaging with communities. 
👉 The tension governments and nations are facing between development and investment and environmental and social concerns - and what that means for the future. 

A key takeaway? It's more important than ever how you articulate and communicate the benefits of a project or position - public perception cannot be ignored, and public support (or opposition) can be the difference between a project's success - or failure. 

Thank you for listening!

Transcript

SPEAKER_02 0:14

Welcome to A Matter of Reputation, the podcast where we explore the intersection of law, dispute, communications, and public perception. I'm Dina Hudson, and today I'm joined by our guest, Maria O'Lone, head of the planning and environmental team at TUINS. Maria has more than 20 years' experience advising on some of Northern Ireland and the UK's most high-profile and strategically significant planning, environmental and public law matters. Her work sits right at the intersection of legal risk, public scrutiny, infrastructure development, and environmental policy. And she was recently recognized as Disputes Lawyer of the Year at the Women and Diversity and Law Awards. Today, we're discussing how planning and environmental disputes have become increasingly reputationally sensitive. We'll be looking at the growing importance of stakeholder engagement and public trust in major projects and what lawyers, developers and communications advisers can learn from some of the most publicly contested infrastructure and environmental cases in recent years. Maria, thank you so much for joining us.

SPEAKER_00 1:20

Thank you for having me. It's a pleasure. Thank you.

SPEAKER_02 1:24

Great. I mean, let's just jump right in, I think. Um giving you an introduction there, but I think for everybody listening, it'd be great just to hear a bit about your role and the work you're doing.

SPEAKER_00 1:34

Great, thank you. Um I'm a solicitor, I'm head of planning and environment, as you've said, at Tunes, and we're a full-service commercial law firm based in Belfast. And my practice covers both contentious and advisory work, and so it's not just um the contentious judicial review court work, it's also the advisory more behind the scenes, I suppose you might say. Um, at its heart, what I do is move projects forward. I help clients to navigate complex planning, environmental, and regulatory issues, and that might involve securing a planning permission for a major infrastructure project or dealing with the judicial review or appearing at a planning appeal or planning inquiry, but also managing environmental investigations or prosecutions and advising businesses on emerging, for example, ESG or climate change and obligations and that kind of thing. So a lot of my work is not just about spotting problems or identifying risks, but it's also that horizon scanning piece. Um I would be a self-confessed planning and environmental law geek, and I love reading policies and things. So a lot of what I do is helping clients spot what's the next big thing, where where is there an opportunity for you to do business or to improve what you do, and so that's a large part of what I do. I'm very lucky. I have some amazing clients across a broad range of industries, so everything from manufacturing to sports and leisure, um retail, but also I advise public bodies as well. So no two dice are the same, but it's great. So hopefully that gives you a bit of an overview of what I do.

SPEAKER_02 3:18

I mean, just on picking up on one thing you said there, you know, you mentioned about the environmental issues and and ESG, which is obviously high on the agenda. But I suppose with that in mind and a bit more broadly, how would you say your role has changed over the years? Obviously, environmental has become a big uh feature of those things, but what about how the environmental aspects and the reputational risk and the commercial decisions, how have they become more central to business decision making, would you say?

SPEAKER_00 3:45

Yeah, well, in your intro, um, you rather cruelly uh told everyone I qualified more than 20 years ago. So well, you know, um, but uh you know, so I did. I qualified, I think, 21 years ago, nearly 22. And then a large part of my work was with probably what you would expect on the environmental side, the big industrial players, the utilities, that kind of thing. And for the most part, from a reputational perspective, they're only really concerned, or those things were engaged when there was an incident or a prosecution or that kind of thing. Um, and now it's completely different, um, it's a very different landscape. Businesses are starting to understand that their environmental credentials are a key selling point for their products, for their services, but it's also key to getting business. And you know, when you look at any public sector tenders now, there's each section on your own environmental credentials and commitments. So that's one thing that I would say is a key trend. The other key trend is the sectors that environmental regulation now applies to is much broader. As I said, used to be kind of a big traditional industrial manufacturing, as I said, would say if it has a chimney with smoke coming out, that was that was that was subject to regulation. And now it's everything, even professional services, so law firms, and we're all required to account for our own carbon footprint and our own environmental credentials. So it's now become what was once a very niche area of law to very mainstream, and that's the same in the business world as well. And that all then has an influence on reputation, reputational risk. It's become a key part about that those environmental credentials.

SPEAKER_02 5:27

Yeah, I think um you you make a really good point there because I think what we often see, or or maybe the public would assume, is that planning and infrastructure projects are really thought of as sort of purely legal or technical exercises, and um you know you've got to jump through certain hoops like planning permission and even now maybe environmental components. But yeah, I suppose what you've just said is that the communications aspects and the stakeholder engagement and the public trust sits alongside some of those legal and technical considerations. Would you say that's that's right in your experience?

SPEAKER_00 6:04

I wouldn't actually say they sit alongside, I would say they're central, central to get it to getting consents. Um the thing that you have to remember, and probably what is unusual about my area of law is that the decisions are usually taken by elected representatives. And because they're elected representatives, they're obviously very concerned about the next election and their electoral mandate. And so, you know, if you are waiting on an election and that's what your job depends on, your own reputational risk profile, if you like, in either consenting a scheme or refusing a scheme is really crucial. So how the public perceives a project or a development then becomes a really a really key issue, and it's something that is woven in and embedded or should be in an application process, and it really means that it has become central how you articulate and how you communicate what the benefits of a project are, why you're doing a thing. It's a it's a really vital component. So it's not just enough to comply with planning policy or the legislation, it's how you can articulate that and explain why a project is a good project.

SPEAKER_02 7:15

Yeah, and and I want to pick up on a term that's I think increasingly used. You may tell me it's always been used, but it's certainly something I've heard uh more recently in relation to sort of large-scale infrastructure projects, and that's this term social license and the fact that it's raising uh it's rising up the agenda. Can you just explain to people what you would define social license as and how I feel like a I feel like I've got an exam question?

SPEAKER_00 7:46

So we won't closer the definition, but just quite so you know, in in layman's terms, social license is about having community buy-in. That doesn't mean necessarily that everybody within a community is going to support your project. That's that's that's almost impossible. But what it means is that people understand what you're doing and why you're doing it. And if they can understand that, then hopefully they can understand what the benefits are to a community. And it's it's not trying to impose developments on communities, but it's working with a community to get a development that works and that fits us broadly, what social license means, and it's then trying to make sure that your project is articulated in the right way, is described in the right way, and in a way that um a lay fares in a strange way. You know, we're we all live in the kind of social media generation where um fake news, to use somebody else's quote, um, can really take hold very, very quickly. So it's really important that you engage at the earliest opportunity with the community that you're going to try and build something in to try and listen to any concerns that they might have and resolve them. And sometimes they're not really planning concerns, but they're they're things that nonetheless are really important to those individuals or those communities. And as developers, you should probably try and resolve them and address them if you can.

SPEAKER_02 9:15

Yeah, it's something um I find fascinating. We do quite a lot of work on these sort of infrastructure projects where um, you know, we've got clients at both ends of the spectrum of really getting ahead of that sort of social license necessity and having a really good rapport with the local community and others who've perhaps been a little bit behind the curve and not got it quite right and suddenly have a significant mountain to climb. And I think um, as you say, getting those and listening to those community concerns and not all of them can be addressed, right? There's always a commercial way up, but if you can um get that local community on side, then your ability to operate once the project is live is obviously always much smoother. So that early investment into the social license um I think is is really critical. So moving on then, um Maria, you recently asked the question, are we all environmental lawyers now? I want to ask you, why do environmental and climate issues now seem to cut across almost every area of business and legal practice?

SPEAKER_00 10:28

Yeah, I mean, uh I well, you're referring, I delivered a paper to the European Young Bar Association in in the autumn, and that was the question I posed to my sort of fellow lawyers. And it really the point was that it does touch on every aspect now of legal practice from human rights lawyers where they're considering, you know, the rights of environmental protesters, right through to corporate lawyers who are, you know, trying to sell a business or do a merger, you know, do mergers and acquisitions and that kind of work, and everything in between. So if you're in a real estate transaction, you're now looking at flood risk and and what the impacts of potential climate change might be on that. And certainly the English Law Society has issued even guidance on that to say that um solicitors should be advising their clients around those things. So, you know, for us uh uh in the legal profession, it is now becoming a very mainstream issue, and it's not something for the sort of you know, the those odd environmental lawyers who sit in a corner. Um it is something that everybody has to have an understanding of. And you know, for businesses, and uh, you know, I mentioned earlier this idea that it's become a key selling point for them, it's become a key part of their business in terms of a requirement of doing business, but also a way of attracting new business. And you know, for a good example is you know, for commercial products, what are your green claims and are they do they stand up to scrutiny? So it it now touches across so many things um in the Northern Ireland context. Obviously, dare I say the word Brexit, but but we're in quite a unique position because you know we have um we're part of the internal market, we're we're dealing with various cross-border issues and different regulatory regimes and divergence, and that's another layer of complications. So you can see um it touches on every aspect of law. So I think uh increasingly um it's become a very mainstream issue. Um, and if if it's not if you're you know if you're a law firm and you don't have an environmental lawyer, um, I think you'll very quickly find you're you're falling behind.

SPEAKER_02 12:40

Yeah, so interesting how things evolve. And I suppose what we've just talked about there is what businesses need to be thinking about in terms of or developers or you know, on the sort of private sector side. Um, but if we always also think about how these things play out in reality, um, you know, you may have a government that's taking a decision to block a certain project because of environmental concerns or public um participation concerns following a consultation, etc. And I'm really interested to hear from you on how you balance those tensions because we've just spoken about the need to listen to those things. But how do governments and societies continue to remain sort of credible, investable, I suppose, foreign investors? How do you continue to attract those foreign investments and appear capable of delivering major infrastructure, which we really need as society evolves? How do you how would you go about advising someone to balance those tensions?

SPEAKER_00 13:40

Um that's a really complicated question. Yeah. Um, and you know, it particularly in recent times we've seen a real focus on it. So, you know, in the Northern Irish context, um, we've had a situation where a US ambassador um and members of the US House of Representatives have written to our governments to say, you know, about a particular planning application that this is the way it's being handled is damaging to the reputation of Northern Ireland as a place to do business. Um, we've seen the Northern Ireland Audit Office report, I think, about two weeks ago, um, talk about how the Planning Appeals Commission, how our planning appeals are dealt with, um, and issues with that organisation and how that's impacting economic development. So we've seen organisations, you know, since such as the Institute of Directors, look at that with some concern, naturally enough. And that gives you an idea that how we handle environmental issues isn't just a regional or local reputational issue or a reputational issue in terms of an individual business, it's a reputational issue for us as a country. And there's a tension there that on the one hand, we want to protect our environment, we want to meet our international climate change obligations, but we also want to be a place that we can do business, we can attract foreign direct investment. And certainly the trends are, um, for example, in the Republic of Ireland, but also um in GB2, that there's been some reforms proposed to, for example, judicial review to make it harder and to bring judicial review challenges or at least to curtail the timescales for those. And some of those measures are um maybe okay. I'll not put it any higher than that. Um, but judicial review and legal challenges are important, and they're important to hold um decision makers to account to make sure that they are making credible decisions, to make making decisions that do hold hold um water and are you know properly compliant with legislation and the law. And so it is it's a really challenging balancing act. And I certainly wouldn't advocate for a bonfire of regulation, but it it's uh something in between. I'm not quite sure what that something in between is, but I think it's important for developers to have some certainty at least around timescales and so on. Um and it it is a challenge. But the other challenge is you know, we have to, as a nation, have sovereignty um to pursue our own environmental goals and targets. And you know, I'm aware of the um claim by the owners of the Cumbria coal mine, you know, under a bilateral trade agreement, which is a very niche uh challenge in many ways, um, and that and that's about um the government's I suppose reversal of its policy around coal mining. So that raises lots of interesting questions of well, should those treaties be used to curtail uh uh a nation's right to make its own laws? And that's probably a bigger question than one I can answer, I have to say.

SPEAKER_02 16:50

I suppose what we're what we're really coming down on is this sort of uh natural investor position, which is if you say you're open to business, then we should be uh able to run our projects on the timelines and in the way that we want to, and the government um sort of duties, constitutional duties to protect other things. And and as you've said, it's it's hard to find that line. Um but the review mechanisms that's what they're there for.

SPEAKER_00 17:17

And I think you know, just to pull the thread, that's a really interesting point. Most of the developers that I speak to don't actually have an issue with that regulatory framework or indeed the ability for decision makers to be held to account. But what they do have an issue with is that um it can entirely derail a project for many, many years, and the process can take too long. And I think that's not that that is a reasonably fair criticism. In actual fact, normally the court process is relatively speaking quick, certainly in judicial review terms, it's it yeah, it's a relatively quick process. It's then when it if if you have a decision that's quashed on some minor procedural issue, that then it can take many years to get back through to a consent. And and that's that's the challenge. And I I have a lot of sympathy for for developers in that position. And I certainly have a number of clients, unfortunately, who who find themselves in that position. Um, and it's been something very minor, really, some very minor procedural issue that um a project has has failed on. Um and that's that and that's no fault of the developers, it's it's maybe the decision maker hasn't hasn't properly taken something into account.

SPEAKER_02 18:28

Yeah, yeah, certainly. Let's move on then to uh a project matter you've been involved in. Um one of the most high-profile matters you've worked on, I believe, is the no gas caverns uh judicial review concerning the proposed. I'm gonna try to pronounce this correctly, Island McGee gas cavern. Yeah. Just for people listening who don't know about that, could you just explain what that case is and and why it became so significant?

SPEAKER_00 19:04

Yeah, sure. So um this and that's an unusual case for me. Uh as I said, I normally act for developers, so it's quite unusual for me to act for environmental NGOs and community groups. But Island McGee, um, for those who aren't from Northern Ireland, if you've ever watched Game of Thrones, lots of Game of Thrones was filmed around there, so you will have seen it uh on the small or big screen. Um, and it's a really beautiful part of the world, and the um proposal was to build seven underground gas storage caverns by way of solution mining, so they would pump um water in and there's their salt salt deposits there, and then that um very concentrated brine solution would be pumped out to sea. And the concern there was two concerns. Well, there's many concerns from the local residents, but one was the impact of that um sort of you know, high they called it high volume sea aline solution, but it was effectively very extremely salty water, that that was going to have a huge impact on the wildlife in that area, and there's lots of um protected species in that area, it's a it's a it's really teeming with um wildlife. And the other was of course that this was for fossil fuels and the concern that it was going to lock Northern Ireland into fossil fuel use for the next 40 or 50 years, and um it was started off by a local campaign group, ordinary people. Um I think the strapline often used was ordinary people doing extraordinary things, and I think that was right. Um and they they started a campaign, and I have to say, one of the hallmarks of it was it was a very respectful, professional campaign. And I always say to um people, that is a model of how to do uh a comm strategy, and so for people who who were not communications experts and who did not have a huge PR machinery behind them, they did it really well, and I think because they were so respectful and professional and you know they very much stuck to the issues, they didn't make it personal, and they gathered media attention, they were able to speak to local politicians, and local politicians you know were prepared to speak to them. Um most of the Northern Irish and Irish environmental NGOs came in and supported them. So um, you know, um RSPB, Royal Society for the Um Protection of Birds, the National Trust, Friends of the Earth, Irish Whale and Dolphin, Ulster Wildlife, you know, and then a range of other NGOs like Uplift, um, Chris Packham's Wild Justice Charity, um, and a number of smaller organizations came in and supported their campaign, and it really snowballed from there. But they also did a lot of really grassroots stuff, old fashioned. They knocked on doors, they talked to people, they explained the issues and got that um, I suppose, um support from the community, that social license that we talked about for what for what they were doing, and it meant that when Politicians were knocking on doors coming election time, they were hearing about this and they were hearing about it very loudly. Um, and then it meant that they were raising questions in the Northern Ireland Assembly, so our local parliament, um, about the project and and and so on. And as a result, you know, by the time that we were coming to challenge the decision, um, there was a huge swathe of material there from hugely respected organisations that were opposed to the project, um, very detailed objections on very technical issues, and they had managed to marshal all of those, and all of these assembly questions where politicians were raising issues and concerns about the project. And as a result, it meant that we could craft a case that focused on our very unique, I must say, Northern Ireland constitutional position, and as part of the peace process, and we were required to it is a requirement that any decisions that are significant or controversial or cross-cutting, so cut across more than one department, have to be taken not just by a single minister, but they have to be taken by all of the ministers in the in the in the executive. And so we argued and we said, well, this is such a significant matter that cuts across a number of departments, so it cuts across the Department for Infrastructure and the Department for the Economy who deal with energy matters, as well as DARE, which was granting them in the marine license, and that this should be taken by all of all of the politicians, and this locks Northern Ireland into fossil fuels for the next 40 years, and it goes against international climate change commitments. And so it was a really unique argument. Um and what was interesting was we were we ran a raft of other arguments, um, and none of the environmental grounds were successful, but that one was, as well as one other very technical point. But it's now set the scene going forward to say actually climate change is really important, and it comes back full circle to this conversation about environmental law is no longer niche, it's not front and centre. So, in some ways, we think about the history and the context of Northern Ireland and that that provision was put in place, really thinking about the peace process and thinking about putting in protections to ensure that um you know a majority couldn't um act against the interests of quite a large minority um community. And here we were using it to protect the environment. So, you know, it's it's a really good example of all of the things that we've actually talked about. It's social license running, the importance of a good communications strategy and public relations, um, uh, and then how you know environmental law now touches not now, constitutional law as well. So it's a really good example of all of that, but a really good example of of ordinary people doing extraordinary things.

SPEAKER_02 24:52

Fascinating case. And it sounds like um the community that were running it have have run an um exemplary one, which you you pointed out, and the legal case as well, clearly. Yeah, you you know these issues um they often become quite emotive, and because they're uh environmentally sensitive, which people which provokes strong views in certain directions, they're often politically charged and and and emotional. So just based on everything you said, and and you know, you you said that they ran an exemplary campaign, what considerations do you think there are when those sort of competing interests collide of this uh political narrative, environmental aspects, uh certain emotions triggered by local communities? How do you think that all converges?

SPEAKER_00 25:40

Yeah, and I and look, we see that a lot with uh planning and environmental cases. You know, um an Englishman's home is his castle. Um I'm not sure about what the equivalent is for Northern Northern Irish man or a woman, but I would say it's pretty similar. And and it's an area of law that people strangely understand in the sense of you know, you can point to a building and you can say, you know, that's that's what's going to be built or that's what's going to be demolished. Or so people people can conceptualize it as opposed to maybe talking about something a share sale seems quite esoteric, doesn't it? Um so that's why it's emotive, but that's why it's important for you know developers, if they're smart, they ask these questions really early on. And it's the first thing that I often talk to clients about if they're coming to me with a development project, is you know, what are the key issues? What are the what are the pinch points here? Who might challenge this? Who who might object and why might they object? And can we go and engage with them? Can we see if those things can be resolved long before you put in a planning application? Um, and you know, again, I've worked with other development clients in really contentious, really difficult, really challenging projects. And you know, a a process that has worked quite well, not just in those really contentious projects, but something I've kind of replicated elsewhere, is a two-stage pre-application um community consultation process. Now it is a requirement to do a pre-application community consultation, but if a developer approaches it more than just a tick box as a genuine engagement, it's really um it can be really successful. And what I've done is I've recommended to clients that they do a two-stage process. So they they do the first stage and they say, look, here's what we're thinking about. What do you think? What are your views? What do you, you know, what are you concerned about, what are you worried about, and what do you like? What would you like to see as well? You know, so it's not always a negative thing. And yes, there are commercial drivers, you cannot um deliver everything for everybody all of the time. Of course you can't, but sometimes it can be something very, very simple that somebody says, Well, you know, would there be parking spaces available for the community on the weekend? Yeah. And sometimes that doesn't cost anything, and they go, Oh, yeah, yes, yes, we could do that, you know. Um, or it, you know, it might be something very minor about that could be tweaked for development that doesn't cost anything, but means the world to somebody who lives nearby for for whatever reason. And so I again I recommend this two-stage process. The first stage is the kind of almost the blue sky thinking of, oh, what do you want to see? Here's what we're sort of proposing, here's the broad outline. And then the second stage is saying, here's the things that you were worried about, or here's the things that you said, and here's how we listened. And it's not always saying, Um here's a solution, or we're not going to do that, but sometimes it is uh, well, we've tried to tweak it a little bit, we've dropped the height, or we've done something to try and address your concerns. And it's amazing how people feeling empowered, people feeling they've been listened to. Sounds very basic, can make all the difference and it can really minimize the objections that you might receive in the paneling process. And so it it's this idea of of back to social license and back to engaging communities that that work front-loaded and seeing problems before they arise, but also if you see an opportunity where somebody says, Well, like there's a local football club here, there's local, you know, yeah, can can we do something with them? Can you partner with them? Can you provide um apprenticeship schemes? Can you that a developer might go, Yeah, yes, yes, we could do that, and that's not gonna cost anything, or it's not gonna cost us very much. And suddenly people think, Oh, this is a great project, or we've been listened to, or this isn't being imposed on us. Um, and you're much then like much less likely to have a very expensive judicial review challenge down the line. So it it's a it's about front loading all of that, and it can then speed up the process and get those timelines and help a bit of investor certainty and deliver all sorts of benefits.

SPEAKER_02 30:00

Yeah, it's it's so fascinating how these projects play out because as we've spoken a lot about the social license, and then you know that's actually speaking to and spending time with the community, as you've highlighted, as being really important. I think you then have to do a proper stakeholder mapping exercise in terms of the local papers and think about how you engage with the journalists there and think about the media narrative that's surrounding it, which can, as we know, can be so influenced influencing, as well as uh the channels to communicate with these people. Like, yeah, there's the physical uh human interaction, but thinking also about what um social media platforms you can reach people with, and then also as we've alluded to, zooming out a little bit as well, and thinking not just about the local community but the broader region, Northern Ireland as a whole, or in whichever jurisdiction you're operating, thinking about the public discourse that's likely to arise more broadly, but also thinking about how that intersects with political agendas and political cycles. Um, and you know, you've got to get all that right at the same time. And that's where I think that the lawyers and the comms people and the public affairs specialists have to work together um as much as possible to find a cohesive strategy.

SPEAKER_00 31:17

Yeah, I mean it's very much a team sport. Um you know it it is because all of those things layer together, and in any big project, you know, I'll be dealing with comms people, I'll deal with transport consultants, ecologists, architects, design, you know, planning consultants, and it's trying to make sure that everybody's pilling in the same direction. Exactly. And and it's you know, whilst my role as a lawyer is legal, and it is of course legal, yeah, um you're having to keep all of those things in mind when you're providing that legal advice. So you know, I'm I'm looking at trying to um protect something from future challenge to maximise opportunities and do all of those things. Um making sure that everybody's communicating things in the right way and in a way that is legitimate and is lawful and is within, you know, the within the confines of what can be said and future proof. Yeah, because there's there's nothing worse than um you know people over-egging what is going to be done and what the benefits are because you just lose credibility with that as well. Um so there is a fine balance there, I have to say.

SPEAKER_02 32:33

So yeah, yeah. Yeah, and a team which is all moving in the right direction is a good one. Yeah. Well, I think that concludes our podcast for today. It's been absolutely fascinating talking to you, Maria. Uh, very refreshing to hear your takes, and uh, I'm sure everybody now fully understands what social license is and why it's so important to get it right. So thank you so, so much for for joining us uh on today's episode. Thank you so much for having me. It's been great. Catch everybody next time.