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C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen (intervening) – read judgment
The German system of judicial review involves a “careful and detailed” scrutiny of administrative decisions. However, admissibility criteria are such that few are able to access this system, particularly groups bringing actions alleging environmental harm.
At the centre of this case is the highly topical matter, relevant to one of the discussion threads on this site, of the trend towards a new system of environmental justice, heralded by Aarhus and the accompanying EU Directives, where national courts to are required to recognise claims brought by pressure groups alleging infringement of environmental provisions, even where there is no individual legal interest involved. The Trianel case puts into sharp focus the debate as to whether the environment should be protected not as an expression of an individual’s interest, but as a general public interest, enforceable in the courts. Continue reading →
This time two years ago two obscure environmental groups, Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.
They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W). Continue reading →
Landscape Of The Beautiful Rolling Scottish Borders Countryside At Sunset
Introduction
On 26th February, parliament held its second reading of the government’s revised Environment Bill 2020, setting out its agenda for environmental reform and governance post-Brexit. It would provide the secretary of state with powers to create new regulations on air quality, water usage, waste disposal and resource management, biodiversity, and environmental risk from chemical contamination, and would create a new non-departmental public body, the Office for Environmental Protection (OEP), as an environment watchdog. The government describes it as the most “radical” environmental legislation to date, and sees the bill as paramount to ensuring both its 25 Year Environment Plan and its Net Zero Carbon Emissions by 2050 goal.
The bill faced criticism both from parliament and from environmental groups. Greener UK, a coalition of 13 major environmental organisation, has said that as it stands, the bill “[would] not achieve what is has promised”, criticising it for lacking ambition and including no legal requirements for the government to prevent backsliding on EU environmental regulation. MPs, both Conservative and Labour, specifically criticised the lack of ambition in air quality. Others criticised the proposed structure of the OEP as being insufficiently independent of the government to match the ambitions of the bill to create “a world-leading environmental watchdog that can robustly hold the Government to account”.
The Bill in Brief
The bill, as it stands, is divided into eight sections, which can be grouped into three major areas: giving the secretary of state the power to amend regulations in areas of environmental concern, legally enshrining biodiversity targets, and creating an environmental watchdog called the Office of Environmental Protection. All three are intimately tied to Brexit, with the government intending to use the bill to “transform our environmental governance once we leave the EU”.
Most UK people’s 2020 Christmas eves were cheered by the news that we had some sort of Brexit deal – here, in all its majesty. Given the deadline for no deal, some deal, however thin, was a good deal better than nothing, with the ill-tempered chaos between the UK and a major trading partner which would have followed from the latter.
News in the last few weeks has concentrated on some of the immediate supply chain issues (notably fishing) which affect businesses, and whether those issues are long-term and intrinsic in any non-single-market Brexit (my view), or can be ironed out in time (as Leavers say).
But there are other long term issues such as environmental protection which are potentially affected by the deal. These have not really picked up in the media. One exception is the very helpful briefing by Greener UK (a group of the major UK environmental NGOs) – here.
The prism for any analysis of the deal is that it is a Trade and Cooperation deal, and the environmental commitments, such as they are, are tied into trade implications – to retain a level playing field for that trade.
The other thing to remember is that it is a public international law agreement, full of the terminology of such agreements, well trodden by the EU in terms of external agreements, and more generally. Put the other way, don’t read it like an EU directive, let alone a UK statute.
To a seasoned follower of environmental policy in Europe, its terms are like winding the clock back 40-odd years. The initial environmental directives (notably on water and waste in the mid-1970s) had no express Treaty hook on which to be hung. The hook only arrived with effect from the end of 1992, when the Treaty was amended. So environmental policy measures in those early days were couched essentially in trade terms.
So what does the deal (a.k.a the Trade and Cooperation Agreement or TCA) tell us? Here are my first thoughts.
In my 2011 post Why be nice? Human rights under pressure I explored the extent to which our limited tendencies to altruism, insofar as they have survived natural selection, could be institutionalised and enforced. In this article I apply the scientific learning on our cooperative instincts to the question of environmental regulation. I argue that whilst we seem to be hard-wired to cooperate, environmental responsibility will only be instilled under certain conditions that resonate with our evolved psychology, and that most modern environmental law fails to acknowledge these conditions. Continue reading →
In this consultation announced this week, the Ministry of Justice is trying to get itself out of the multiple Aarhus problems facing UK justice. Infraction proceedings are threatened in the EU Court, and adverse conclusions were reached by Aarhus Compliance Committee; all much posted about on this blog, for which see below. The main problem is that the Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and everybody now appears to agree that the basic UK system of “loser pays the costs” does not achieve that objective without changes. So what does MoJ propose to do about it?
It says that costs protection should be provided via codification of the rules concerning Protective Costs Orders. That means that a claimant in any public interest case may ask the court for a PCO, to “cap” his liability to pay the other side’s costs to such a figure as does not deter him from bringing those proceedings. The boundaries of when a PCO can be ordered are much fought over – leading to more costs – but it certainly extends in principle to all public interest judicial review cases, not simply environmental ones. It is possible (at its very lowest) that PCOs can be made in public interest environmental challenges not involving judicial review, though there is not yet a decision either way on that.
Public Interest Environmental Litigation and the European Court of Human Rights: No love at first sight, by Riccardo Pavoni – read article
Thanks to this link on the ECHR blog, a fascinating account of the twists and turns of Strasbourg environmental case law from Professor Pavoni, of the University of Siena. It is 30 closely-argued pages, so I shall try and give a flavour of the debates Pavoni covers, as well as chucking in my own penn’orth.
The starting point, as I see it, is that public interest environmental litigation is a square peg in the round hole of Strasbourg case law. The Convention and the case law are concerned with victims of human rights abuses. Environmental degradation affects everyone, but not necessarily in a way which makes them a a Strasbourg victim. Take loss of biodiversity, say the decline in UK songbirds, or the peace of a remote moorland affected by 150m high wind turbines. Who is the potential victim in those cases when judged by human rights? Pavoni argues that if the Strasbourg Court were to assert jurisdiction over environmental cases as a common good, alongside adverse impacts on private victims, this would not result in a major overhaul of the Court’s current principles – not too much expansion of the hole needed to fit the square peg in snugly. How does he reach that position?
The vigilant gaze of the European Commission will begin to turn away from UK when the post-Brexit transition period ends at the turn of the year. The Commission has used its powers as the ‘guardian of the treaties’ to enforce EU laws relating to nature conservation, waste and air pollution. Its absence will leave a governance gap, and replacement institutions are needed to ensure that environmental laws are enforced.
This article discusses the functions and powers of the ESS in the Bill and then analyses the proposals through the lens of the UN’s Paris Principles (used for assessing the credibility of national human rights institutions).
“When we leave the EU, we will be able to build on the successes achieved through our membership, and address the failures, to become a world-leading protector of the natural world. We have also published the 25 Year Environment Plan, which sets out this Government’s ambition for this to be the first generation that leaves the environment in a better state than that in which we inherited it. These good intentions must be underpinned by a strengthened governance framework that supports our environmental protection measures and creates new mechanisms to incentivise environmental improvement.”
Michael Gove has announced his plan for a UK Commission on the environment, for which the consultation paper is out now. The paper sets out the principles laid behind the Environmental Principles and Governance Bill which will be published in November this year. This proposed law is said to mark the creation of a “new, world-leading, statutory and independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU.”
The proposed Bill may not see the light of day, if today’s events are anything to go by. This afternoon the House of Lords voted (294:244) to include the principles of environmental protection in the European Union (Withdrawal) Bill, rather than introducing a separate piece of primary legislation as set out in this consultation document: the successful amendment is first up here.
However things turn out in the Commons, it is worth attending to the plans for maintaining and enhancing environmental protection in a post-Brexit UK. Continue reading →
Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment
A vignette of where
(1) Trinidad and Tobago is,
(2) the EU/UK is,
(3) where Michael Gove may wish us to be post-Brexit,
on the Polluter Pays Principle (PPP), a key environmental principle.
As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).
Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.
Fish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon
In this most recent case concerning access by private individuals to environmental information held by public authorities, the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had been addressed to private companies which manage a public service relating to the environment. The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).
Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law. Continue reading →
Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment
As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.
The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.
R (Finch) v. Surrey County Council et al [2020] EWHC 3559 (QB) – read judgment
Environmental Impact Assessment or EIA is the process by which a developer and a planning authority look at whether a particular project is likely to have significant direct or indirect effects on the environment. And an EIA must address a factors such as human health, biodiversity, land, water and climate as well as cultural heritage and landscape.
But how far does the enquiry have to go? This is the very stark question raised by this planning case.
The developer wanted to drill oil from the Horse Hill site in Surrey (see pic) for a production period of 20 years. The crude oil thus won would be tankered offsite for refining by others. The refined product would probably be used for transportation, but also for heat, manufacturing and in the petrochemical industry.
The issue was whether the local authority could stop its EIA lines of enquiry when it had considered the setting up works and the oil production processes, or whether it had to assess the wider climate change implications of long-term use of the oil so produced.
The judge, Holgate J was firmly of the view that the assessment process was limited to the first. Surrey’s EIA process was thus sufficient.
Most now accept that the Earth is fragile, but can the legal system help to secure its future?
Among the ideas currently gaining currency is adding a crime of ecocide to the jurisdiction of the International Criminal Court (ICC). If this idea is accepted, ecocide would join war crimes, aggression, crimes against humanity and genocide as a fifth crime against peace.
The rationale behind the campaign for a crime of ecocide is similar to that of other ecological legal initiatives; namely, that addressing environmental imperatives requires a seismic shift in attitudes, practices and culture, in both the corporate and political spheres. Catastrophes such as Deepwater Horizon highlight the failure of existing mechanisms to ensure that the commercial world’s financial and economic prowess is matched by a duty of care for the planet on which it operates, and the rights of both its current inhabitants and those yet to come.
Fish Legal v Information Commissioner and others (Information rights practice and procedure) [2015] UKUT 52 (AAC) Charles J – read judgment
Water and sewage utility companies are “public authorities” for the purposes of the environmental information regulations, and are bound by them accordingly, the Administrative Appeals Chamber of the Upper Tribunal has ruled.
Fish Legal is the legal arm of the Angling Trust. In 2009 it asked United Utilities Water plc and Yorkshire Water Services Ltd for information relating to discharges, clean-up operations, and emergency overflow. Emily Shirley is a private individual. Again, she asked Southern Water Services Ltd for information relating to sewerage capacity for a planning proposal in her village. All three companies denied that they were under a duty to provide the information under Environmental Information Regulations. Both Fish Legal and Mrs Shirley complained to the Commissioner. In 2010 the Commissioner replied, explaining that as the companies were not public authorities for the purposes of EIR, he had no power to adjudicate the complaints. Continue reading →
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C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen (intervening) – read judgment
Most now accept that the Earth is fragile, but can the legal system help to secure its future? 
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