Sinclair v Information Commissioner and Department of Energy and Climate Change EA/2011/0052 (08 November 2011) – Read ruling
The Environmental Information Regulations 2004 (“EIR”) did not require the Department of Energy and Climate Change (“DECC”) to disclose information concerning the government’s analysis of the potential cost to the UK of strengthened climate change commitments by the EU, the First-tier Tribunal (General Regulatory Chamber, Information Rights) has held.
In March 2007, the EU announced a target to reduce emissions by 20 percent on 1990 levels by 2020 and increase it to 30 percent under certain conditions. The issue of whether the EU would accept the increased target was debated during the 2009 Copenhagen Conference, but not agreed upon. It therefore remains a live issue.
David Thomas Howarth v Commissioner of Police of Police of the Metropolis  EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
The underlying question was whether the Duchy of Cornwall had to answer Michael Bruton’s requests for information about the Duchy’s oyster farm, and in particular whether the farm had undergone environmental assessment before it commenced operation. Bruton’s concerns were that the Duchy’s oysters were non-native Pacific oysters, and he wanted to know whether the Duchy had considered whether the establishment of such a fishery affected existing oysters or had other effects upon the environment. In many regards, the case is round 2 of a battle started by Bruton in 2009 challenging the original grant of a licence by the Duchy to the oyster fisherman: see the 2009 decision by Burton J granting permission for this challenge. In the present case, the Information Commissioner said that the Duchy was not obliged to provide the information. The FTT disagreed.
Belgium and its airports seem to have been skirmishing with the European Union Courts for some time now. First, in 2008, the ECJ in Abraham decided that a major and well-established expansion of Liege-Bierset airport required Environmental Impact Assessment (EIA), contrary to the contentions of the airport and its operators. Our case, Boxus, concerns a raft of challenges to consents for that airport expansion, and to similar projects affecting Charleroi airport and railways. These challenges ended up in front of the Court of Justice of the European Union on more EIA issues. This time, it appears that the Walloon Region of Belgium had become impatient with continuing court challenges – so it resorted to Parliamentary Decree, in which Parliament “ratified” the various planning consents.
Hey, presto, the Region thought, any defects in previous procedures are solved, and the court proceedings will fall away – or will they? Enter, on a white charger, the Aarhus Convention to the aid of the challengers.
R (o.t.a Cornwall Waste Forum, St Dennis Branch) v Secretary of State for Communities and Local Government  EWHC 2761 (Admin) Collins J, 13 October 2011
I did a recent post on this case based upon a very short report; the full transcript of the judgment is now available. The case concerns who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants.
The headlines are as before – but there is a good deal in this judgment, particularly for those interested in conservation issues, as well as that vexed question of when a legitimate expectation may arise in the course of a hearing. Sadly, the judgment is still not available on an open access website such as Bailli – bless it, per Adam Wagner’s post– but I hope that will change soon.
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.
Cornwall Waste Forum, St Dennis Branch v Secretary of State for Communities and Local Government (2011) QBD (Admin, CO/6088/2011), Collins J, 13 October 2011
An interesting case about who is to decide issues of air quality in a planning case about incinerators/energy-from-waste plants – that choice of terminology depends on whether you are objecting to or applying for permission to construct. Because the judgment is extempore, it is very shortly reported at the moment (on Lawtel for those who have access to this subscription service), though some extracts are to be found on the claimants’ website. Continue reading →
When you breathed in asbestos fibres from your dusty shipbuilding job on the River Clyde in the 1950s and 1960s, some of those fibres stuck around in the lungs. Some may cause the pleural plaques seen on my image, some may cause asbestosis, and some may lead to the highly malignant mesothelioma.
So your doctor (20+ years later when these diseases manifest themselves) would X-ray you and tell you what form of the disease you had. If he told you you had pleural plaques, you would, at first, breathe a huge sigh of relief that it was not mesothelioma. Because pleural plaques are almost invariably asymptomatic and harmless.
But on second thoughts, now you know you have indeed been exposed to asbestos such that you might develop mesothelioma – and you have seen colleagues die a miserable death from that disease. So, when you leave your chest physician’s room, you are worried, not about what you have, but about what you might get. Do you get damages for this? And anyway, where do the human rights in my title – those under Article 1 of Protocol 1 to ECHR, or the right to peaceful enjoyment of possessions – come into this story? Continue reading →
But that all changes when the US lawyers come over here – exactly the issue in this case. US airlines said to the EU Court that their rights under international aviation law have been infringed by a European Directive on greenhouse gas emissions from airlines. This EU Court Opinion goes right to the heart of how two systems of supra-national law fit together. EU law hits International Law. And, unsurprisingly, an EU lawyer thinks that EU law wins – so far, anyway, before the full EU Court of Justice decides the case.
The result of this decision by the CJEU is summed up in a pithy summary by EU Business entitled “EU court backs angry honeymaker in GM pollen row.” The underlying question arose when food law met honey law (yes, there is one) met GMO licensing law, It was all about whether adventitious contamination of honey and pollen deriving from GMO maize renders the honey a GMO product.
Paradoxically the beekeeper sought that outcome in what we would call statutory tort proceedings. He sued the State of Bavaria who owned various experimental GM maize plots, for damaging his honey via GM pollen. Monsanto, the real object of the case, said that it didn’t matter really that its GMO pollen was in the pollen, and it didn’t cause damage for which our apiarist could sue. As we shall see, the CJEU decided it did matter – a lot.
Not all of you will know that EU legislators have dedicated a whole Directive to honey; of Council Directive 2001/110/EC. In the lyrical yet precise prose of the Eurocrat: ‘Honey is the natural sweet substance produced by Apis mellifera bees from the nectar of plants or from secretions of living parts of plants or excretions of plant‑sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in honeycombs to ripen and mature.’ : Annex I. Honey consists predominantly of sugars but also contains solid particles derived from honey collection, as Annex II tells us.
In the UK and EU, there are a lot of statutes and rules about climate change, and relatively little strategic litigation. Hop over the Pond, and we see exactly the reverse, a reflection of different political dynamics with the hostility of the US Congress to climate change legislation.
It is interesting to look at some of the US cases, not only because they lock horns with one of the big issues of our time, but also because they reflect a common problem the courts face in deciding their role when confronted with science which is, or is said to be, controversial.
We should start with the groundbreaking decision in Massachusetts v. EPA (549 U.S. 497 (2007)). The US Supreme Court held that the US Environmental Protection Agency had a duty to use its existing powers under the Clean Air Act and assess whether greenhouse gas (GHG) emissions from vehicles were a danger to the environment and, if that was the case, to regulate them. In the litigation, and contrary to the opinion of two of its previous general counsels, it had denied that it was under a duty to do so. This judgment was a highly important ruling, as it meant that no new legislation was necessary to get the climate change ball rolling. Thereafter the EPA turned to how it should regulate GHG emissions, as we shall see.
Case EA/2010/0204 Robinson v. Information Commissioner & Department for Communities & Local Government, First-Tier Tribunal, 19 July 2011
This interesting decision of the First-Tier Tribunal (not linked to this post, for reasons I shall explain below) goes to the circumstances in which a public authority can refuse under environmental information rules to disclose legal advice received by it. All lawyers will know that such advice is covered by legal professional privilege. But such privilege does not necessarily prevent it from being disclosed by a public authority. Under the Freedom of Information Act (FOIA) regime, it is a ground for refusing to produce documents, but only when that is in the public interest. Under the exemptions in the Environmental Information Regulations privilege is not even a ground of exemption; the public authority must show a rather different thing, namely that disclosure of the legal advice would adversely affect the course of justice, and in all the circumstances of the case, the public interest in maintaining that exemption outweighs the public interest in disclosure. In addition, there is a presumption in favour of disclosure.
Updated| R (Infinis) v. Ofgem & Non-Fossil Purchasing Agency Limited, Interested Party  EWHC 1873 (Admin) Lindblom J, 10 August 2011 Read judgment
In a recent post, I suggested that successful claims under Article 1 Protocol 1 (the human right to peaceful enjoyment of property) faced all sorts of difficulties, hence the particular interest of that decision in Thomas which bucked the trend. Rash words at the end of a busy legal term: hard on the heels of that judgment of the Court of Appeal, there comes this further example of an A1P1 claim succeeding in the environmental context.
This time, the claim arose as a result of a judicial review, where the judge decided that the regulator had come to an unlawful decision, and hence that unlawfulness gave rise to a damages claim against the regulator.
Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment
I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.
But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?
Update | Thomas v. Bridgend County Borough Council  EWCA Civ 862, Court of Appeal. Read judgment
Conventional wisdom has it that an Article 1 Protocol 1 (the human right to peaceful enjoyment of property) environmental claim faces all sorts of difficulties. The claimants may have a right to the peaceful possession of property, but that right is immediately counter-balanced by the public interest of the scheme under challenge. Furthermore, the court does not look too closely at the detail when applying the proportionality test, as long as the scheme is lawful. Or does it?
Our case is a refreshing example of where manifest injustice was avoided by a successful claim under Article 1 of the First Protocol of the ECHR. It also shows off the muscles of the duty to interpret legislation, under section 3 of the Human Rights Act 1998, in accordance with the ECHR.To find what it was about, we need to go to the Hendre Relief Road in Pencoed, Bridgend and those who live nearby.
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