The Hague Court of Appeal has recently handed down a ruling that is of profound importance to environmental lawyers. It is not only the first case at the appellate level in Europe that has resulted in a victory on the merits for the victims, but also the first case to hold that a parent company was under a duty of care with regard to foreign claimants. I will attempt to summarise one of the judgments in the following paragraphs, but readers would do well to look at the detailed analysis of the case by Dr Lucas Roorda on the Rights as Usual blog: “Wading through the (polluted) mud: the Hague Court of Appeals rules on Shell in Nigeria”.
David Hart QC will follow up my post with a piece on the UK Supreme Court decision in Okpabi v Shell on 12 February 2021.
There are in fact three judgments in this case Four Nigerian Farmers and Milieudefensie v. Shell; as Dr Roorda says,
The first (‘Cases A and B’) concerns an oil spill from an underground pipeline near Oruma in 2005; the second (‘Cases C and D’) concerns an oil spill from an underground pipeline near Goi in 2004; the third (‘Cases E and F’) concerns an oil spill from a wellhead near Ikot Ada Udo.
State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here
The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).
The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.
A plethora of reintroductions of various species have been making the news recently, with such charismatic species as White Sea Eagles and Red Kites. Dr Mark Avery from Wild Justice discusses with Carol Day how well these projects are working. They also strike a note of caution about the proposal to reintroduce Hen Harriers in the south. Dr Nikki Gammans of the Bumble Bee Conservation Trust talks about the reintroduction of the Short Tailed Bumble Bee. This species as taken to New Zealand in colonial times, and the population remained there after it went extinct in the UK. The Bumble Bee Trust is running a project to bring them back to this country.
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.
The UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J, 10 July 2013read judgment
Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length – Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.
The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.
R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government  EWHC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment
Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.
Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.
The key bit of the impugned guidance was that those running local authority pensions must not use their policies to
pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;
“pursue policies that are contrary to UK foreign policy or UK defence policy”.
The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.
No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.
It must be something in the air. On the day the “Ratcliffe 20” were spared imprisonment for their planned attack on a power station, the Guardian published environmental lawyer Polly Higgins’ call for a new crime of ecocide and the fringe movement Campaign for Real Farming – rival to the mainstream Oxford Farming Conference – were sewing the seeds for resistance to ecologically damaging agricultural laws and practices.
The widespread perception is that the law and its custodians can no longer be trusted to safeguard the environment, or, to put it in the language of rights, that the protection that flows from current forms of rights entitlement is not only insufficient for, but positively damaging to the interests of the natural world.
R (ClientEarth) v Secretary of State for Environment, Food & Rural Affairs, Supreme Court, 29 April 2015, judgment here
Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide to refer various issues to the CJEU in Luxembourg. In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.
The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts. Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings. The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.
Earlier today, 25 September 2012, (judgment here, in French) the Cour de Cassation in Paris ruled on the long-running question of whether Total is criminally and civily liable for the loss of the Erika on 12 December 1999 and the consequent spillage of some 20,000 tonnes of heavy fuel oil, affecting some 400 km of the French coastline.
The case has see-sawed so far. The Criminal Court of First Instance, and the Court of Appeal in Paris had said that Total and others were responsible, though the Court of Appeal did not make this finding in respect of the civil claims. Next, the prosecutor, Advocate-General Boccon-Gibod, expressed his view to the Cour de Cassstion that Total was not liable at all. But his view was not shared by 80 parties who appeared before the court, including the affected communes Now, the court has finally ruled in favour of those polluted, both under the criminal and civil laws, as against Total and other responsible parties – all these issues have been decided in the same decision, in a way which may seem a bit odd to UK lawyers who generally put criminal and civil law in different boxes.
The judgment is pretty weighty, some 330 pages of legal French – as is standard, this is all written as one huge sentence – broken up by multitudinous semi-colons. it is not easy to digest, to say the least, but I shall try and give the bare bones of the decision.
R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government  UKSC 16- read judgment
As I said in my post on the 1st instance decision, many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views. But can they under current local authority pensions law?
This case is about Government “Guidance” aimed at local authorities, banning some of those “ethical” objections to investment policies but allowing other objections. “Guidance” in quotes because the net effect of the Act and secondary legislation was to make the Guidance mandatory: see  of Lord Wilson’s judgment. In particular, the policy ban was to apply to (a) boycotts to foreign nations and (b) UK defence industries. The sharp focus of the former was Israel. No surprises that the Quakers and the Campaign against the Arms Trade should appear in support of the challenge to the latter.
The Guidance is applicable to local government pensions affecting 5 million current or former employees. So it arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs: was it or was it not authorised by the underlying legislation?
The Guidance said that those running local authority pensions must not use their policies to
pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government;
“pursue policies that are contrary to UK foreign policy or UK defence policy”.
Did these prohibitions go beyond the SoS’s powers under the relevant pension provisions?
Answer, according to the Supreme Court, yes, but by a majority of 3-2.
On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year. He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.
The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.
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?
Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment
Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads “promptly and in any event not later than 3 months.” The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.
One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.
The US Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.
Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  EWCA Civ 380 – read judgment
This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.
The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.
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