Category: Environment


Ratcliffe climate change protesters acquitted on appeal

20 July 2011 by

Barkshire & others v. R.     Read Judgment

The remaining Ratcliffe on Soar climate change prosecution reached the Court of Appeal on Tuesday, and led to appeals being allowed today. We have covered this trial, here and here, most recently on the collapse of a second prosecution after the revelation of activities by an undercover police officer.

The Court of Appeal was very concerned by the lack of disclosure given by the prosecution concerning the undercover police officer, and it was this which ultimately led to the convictions being quashed. But the judgment is not all good news for climate change protesters, as we shall see.


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Promptness in judicial review again: Broads follows Buglife

15 July 2011 by

U & Partners (East Anglia) Ltd, R (on the application of) v. The Broads Authority [2011] EWHC 1824 (Admin) 13 July 2011. Read judgment

I posted recently about a case, Buglife,  which affects the rule that judicial review must be commenced “promptly and in any event not later than 3 months.” Buglife decided that, contrary to a previous Court of Appeal case, Finn-Kelcey, a court could not bowl out certain claims if they were  commenced within those 3 months, even if not “promptly”. And the Broads case of this week reached the same conclusion. The key to these cases is that they involve challenging the application of a Euro-directive. 

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Wind, peat and reasons: do I know why I lost?

9 July 2011 by

RWE Npower Renewables Ltd v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

There are two things which public law fairness demands of a judge or a planning inspector before they rule against a party. The first is to make sure that any doubts about a party’s case is put to that party so he can respond. The second is that the judge or inspector explains his reasons for his conclusions in summary form. Unfortunately, in this case, the inspector did neither, and hence the decision was quashed by Beatson J. The judgment, at [37], contains a very good summary of the current cases on the adequacy of reasons in both planning and non-planning contexts. 
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The Environmental Tribunal: the view from Auckland

8 July 2011 by

Access to environmental justice is as topical as ever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.

One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.

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Hockeysticks: Climategate Unit told by Information Commissioner to produce weather data

3 July 2011 by

Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.

This environmental information case is the sequel. And, as we shall see, strange is the territory into which the right to information leads us: so far I have posted on pearls and badgers and oilseed rape, bees, lettuces and mobile phone masts. Now we are into global weather data going back to 1850.

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Nature: give it a right or put a price on it?

14 June 2011 by

A recent guest post from Begonia Filgueira celebrated the move by the Bolivian Parliament to accord rights in law to Nature. It rightly commanded considerable attention but not all readers were ecstatic. So when last week DEFRA came out with a rather different approach to valuing nature in its Natural Environment White Paper – the first in 20 years – it was interesting to see the way that the Environment Department thought things should be done.

Not the Bolivian route, unsurprisingly, but the White Paper raises an entirely different way of valuing nature which we should compare with the idea of granting rights.

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Oil spills and tar sands: ecocide questions

7 June 2011 by

Our guest post from Frances Aldson last week drew many and varied comments from our readers on this blog and elsewhere, including those at each end of a spectrum ranging from the enthusiastic to the choleric.

This follow-up post is designed for those who have no strong views but who want to muse on the implications of the proposal which is due to be raised, via one route or another, with the UN, either this year or next.

The proposal, by Polly Higgins, is to add a new crime of “ecocide” to the jurisdiction of the International Criminal Court, namely:

Ecocide is the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
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What can an Environmental Tribunal do?

6 June 2011 by

Access to environmental justice is a subject close to the hearts of various contributors to this blog, as one can see from the posts listed below. But not only to them – Sullivan LJ was the chairman of the working group that in 2008 wrote Ensuring Access to Environmental Justice in England and Wales”. Jackson LJ returned to the issue in his report on the costs of civil litigation. In December last year the Supreme Court referred to the Court of Justice of the EU, Edwards, a case about the English costs regime, and whether it complies with the Aarhus convention. Finally, in April 2011 the European Commission said it was going to refer the UK to the CJEU for failing to comply with the costs element of the Convention.

So the UKELA seminar on “Developing the new Environmental Tribunal” hosted by Simmons & Simmons on 16th May 2011, was timely, to say the least, particularly as the speakers included Lord Justice Sullivan, and Lord Justice Carnwath the senior president of the Tribunals, and Professor Richard Macrory Q.C., author of a new report on the Environment Tribunal.

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Why can’t objectors appeal a planning consent or environmental permit?

6 June 2011 by

The ticklish question of how to come up with a cheap but effective form of environmental judicial review still has not been answered.

One way talked about at a recent seminar on environmental tribunals (see John Jolliffe’s post of today) is to use the environmental part of the new tribunal system, and have judicial reviews heard by judges sitting there. As John noted, the advantage to claimants is that there is a general practice in the part of the tribunal dealing with land disputes that costs are not awarded against them if they lose – unless they have been thoroughly unreasonable.
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ROC Sugar: keep the swings and ignore the roundabouts?

3 June 2011 by

Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change & Anor [2011] EWCA Civ 664 – Read judgment

You depend on a subsidy for developing a new technology. You say that Government is not giving you a big enough subsidy. You sue Government who says, er, yes we worked it out wrong – but now, doing it right, we come up with the answer we came up with in the first place. A lawful or unlawful decision by Government?

This was the conundrum facing the Court of Appeal in Tate & Lyle v. Department of Energy & Climate Change.

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And about time for rights to nature? By Begonia Filgueira

2 June 2011 by

It took until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. In light of the dangers posed by climate change, is it time to go one step further and grant rights to the Earth herself?

Bolivia has done just that – the Mother Earth Rights Law (Ley 071(21 December 2010)) has now come into force.  Congratulations to everyone involved in drafting and promoting this law.  With Evo Morales’ Party (the Movement Towards Socialism) having a majority in Congress and the Senate, this law passed without much opposition.  It is a wonderful legal milestone, which I have been advocating for a number of years as the only way to balance the rights that humans have with the protection of the Planet and ultimately the human race.

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Is it time for a crime of ecocide? – Frances Aldson

2 June 2011 by

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.

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No right to enforce EU air pollution law: only a Crackerjack pencil

31 May 2011 by

More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.

Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General  thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed  – in English.

The problem arose because the EU made two directives which didn’t talk to each other.

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Old laws v. new policies: Parliamentary privilege but not a footballer in sight

28 May 2011 by

What happens when the government changes its mind about an existing law but new law has not yet been enacted?

Easy, really. You have to follow the old law, whatever the government may currently think about it. But it gets more complicated when the area of law, like planning, has a wide area of policy-making and policy-following built into it. So now we have old law, and new policy announced but no new law yet to underpin that policy other than in the broadest sense.

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“Prompt” means 3 months and not a day less for Euro-cases

23 May 2011 by

Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment

All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.

And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.

Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.
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