The Environmental Law Foundation
8 August 2016
Many readers will know that I have banged on, long and hard, via this blog about the constant problem we have in the UK trying to ensure that the cost of planning and environmental litigation is not prohibitively expensive for ordinary people. The UK system has been held repeatedly to be in breach of Article 9 of the Aarhus Convention, which says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. For Aarhus beginners, have a look at my bluffers guide – here
So I was delighted to be asked recently to chair the Environmental Law Foundation whose main role is to help out people, for free, with their planning and environmental problems. ELF is going to have its 25th birthday next year, and this short post is an unashamed plug for the job that it does – together with an invitation to contact it (see below) if you have a problem you think they may be able to help with, or if you want to volunteer to assist on someone else’s problem.
One of the problems with planning and environmental issues is that they are devilish complicated, both factually and legally, and people need all the help they can get. Take a case typical of the last 5 years. Someone wants to build a wind farm near your community. You go onto the local council’s website to see what information the developer has put up about the project. You idly riff through the Environmental Statement, all 1200 pages of it. How is your knowledge of acoustics? Poor? If so, not much point reading their noise report saying that everything will be alright. What effect is the project going to have on birds, or bats? Can you decipher the ecological jargon in which their reports are clothed? And that is the science, even before you get to the congested prose in which lawyers and planners express themselves.
So the idea is to try and help people with all this, firstly to understand it, and secondly, once understood, to object to it if that is what the community wants.
From its title, Environmental Law Foundation, you might think that it is just about law, and that ELF just wants lawyer volunteers. Not a bit of it. We would be delighted to get the help of those with a scientific background who can seek to analyse and explain the issues.
At the moment, ELF depends on volunteers at all levels. We have successful programmes for students who help (under the supervision of a lawyer) with various problems which come into ELF, and barristers and solicitors of all ages and stages provide assistance as well. So if you think you would like to help, or indeed if you would just like to know a little more about us, have a look here or email us at info@elflaw.org. You will see from the website that we are currently involved in campaigns to protect a pristine beach from a proposed open cast mine, or to save wildflower meadows – and what about whether it is lawful for a Council to charge people for access to a beach.
ELF also says its piece on wider issues, such as access to justice, with which this post started. And we face a huge challenge over the next few years in doing our bit to make sure that Brexit is not disastrous for the environment. We have 40 years of accumulated European law which has massively improved our air and water quality (to name but two areas), and we must keep up the pressure to make sure this progress is not lost in the near future.
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Related posts:
- The Supreme Court on “prohibitively expensive” costs: Aarhus again
- Aarhus, AG Kokott’s opinion and the reciprocal cap
- The CJEU on “prohibitively expensive” and the new protective costs order regime.
- Aarhus for beginners
- Private nuisance and the costs conundrum
- Court of Appeal downplays Aarhus
- Environmental judicial review is “prohibitively expensive”, uncertain and insufficient
- Why can’t objectors appeal a planning consent or environmental permit?
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If we take the definition of the rule of law to be Lon Fuller’s eight requirements, or Lord Bingham’s more recent reformulation, we can see some clear breaches by Aarhus.
(1) Legislation should be general and apply equally unless there is a good point of principle otherwise. Carving out a special costs restriction for one type of litigation is a flagrant breach of that principle. No doubt environmental claims are important, but so too is _any_ form of litigation, depending on the circumstances and the limits of your imagination.
(2) Moreover, once an exception has been carved out, it provides a fertile source for litigation over whether any particular case falls within the exception. There will no doubt be some cynical cases where an environmental peg is found for what is not really an environmental case at all, or not as intended by the Aarhus drafters. Or there will be worthy claims excluded by the wording of the regime even if they would fall within its spirit. Or there will be worthy cases which proceed eventually, but only after the overworked courts have had to spend time and public money resolving the preliminary question of the costs exemption.
(3) Any form of litigation in which the claimant is not liable for the opponent’s costs if the claim fails (and required to insure the liability or put up security for costs) effectively creates the opportunity for blackmail. Many argued that was the case under the old EAT costs rules and the New Zealand Resource Management Act (which allowed objections to planned development to be made by people who would not bear the cost of their objections failing, hence specious objections were brought by those hoping to be bought off).
(4) True, the rule of law also requires that citizens be able to bring proceedings to enforce their rights or clarify their legal position. If the courts are too expensive for all but the smallest fraction of society to use, all the rights they supposedly uphold will be illusory and another of Fuller’s principles will be broken. But, going back to (1) above, this applies to _all_ rights and hence all litigation. There is no justification for special regimes here and there – employment, family, environment, whatever – because indigent but worthy claimants can be found everywhere. Arguably, the two most significant civil cases in English history involved Mrs Carlil of the Smoke Ball and Mrs Donoghue of the snail and ginger beer. Neither case concerned environmental, employment or family law, and Mrs Donoghue was indigent (and only able to bring her claim because she satisfied the courts she was a ‘pauper’ in the language of the day).
(5) Another flagrant breach of Fuller’s requirements is the absurd complexity of the environmental regulations as identified by the post above (in breach of Fuller’s fourth requirement – laws must be clear). The answer is not to create a costs regime enabling people to hire expensive lawyers they would not otherwise risk (at the expense of the defendant win or lose). Rather, the answer is to have a proper regime that is of manageable length and complexity. Easier said than done (if the tax regime and all its failed rewrites are anything to go by), but it could and should be identified as a priority goal. And those responsible could bear in mind that it is policy that causes complexity more than prolix drafting.
Reblogged this on VICTIMS OF THE STATE and commented:
It seems as we progress in time more and more inalienable rights we’re supposed to have or once had are being whittled away to our peril, while the fat cats in power’s income [and power] is not only unaffected but actually increases. Noone I know [or worth knowing] has an off-shore bank account, which, anyway, is just a tax avoidance scheme for the wealthy – a legal loophole, proving those wealthy enough can buy their way out of paying the taxes etc. which keeps the country running [which is arguably not even happening anyway] and all is kept under wraps under some other concocted rule or whatever the wealthy have devised for themselves in the 1st place, while a person dies of starvation somewhere every 4 seconds!! How can this be right?