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I argue that both perspectives are misleading in some important respects. While there were some genuine innovations on standing, particularly for associations (which have been covered by others already), the decision on the substance of the Convention rights is far from a doctrinal revolution. Klimaseniorinnen is best understood as an extension of three well-established principles from ECHR environmental cases: (1) the crucial importance of procedural requirements, particularly the exhaustion of domestic remedies, (2) the application of Articles 2 and 8 ECHR requiring regulation and enforcement, including with respect to risks that have not (yet) materialised, and (3) the preference for Article 8 ECHR over the lex specialis in Article 2 ECHR.
Overall, the margin of appreciation looms large in the Klimaseniorinnen and ultimately, the ECHR remains on the outer margins of climate change policy: unless states do not have any greenhouse gas reduction targets, or choose not to enforce them, they are unlikely to exceed the margin of appreciation. Notably, the judgment does not require any particular reduction targets or mitigation measures ([547]), nor does it enforce the Paris Agreement via the Convention ([543]).
This interesting case concerns a problem endemic to the manner of regulating water bodies under the Water Framework Directive and the regulations passed under it. This is what happened.
The anglers’ group Pickering Fishery Association raised concerns with the Environment Agency regarding the deterioration in the water quality of the Upper Costa Beck (“UCB), a ground water fed stream in North Yorkshire. It is described by the water campaigning group that acted for them in this litigation as “one of the best trout and grayling rivers in Yorkshire”. They owned the leasehold and freehold fishing rights for most of the UCB. The UCB provides water to two fish farms and downstream is the Yorkshire Water’s water treatment works, which discharges back into the UCB.
The claimant’s concerns included the impact of the recorded sewage overflows from Pickering Waste-Water Treatment Works; the level of sediment deposits resulting from the fish farm ‘suspended solids’ emissions; and the adequacy of the Environment Agency’s environmental permit conditions and other controls. Sewerage overflows from the water treatment works occurred over 250 times in 2020 and over 400 times the year before.
The pumping of raw, untreated sewage into Britain’s waterways is one of the defining political issues of the day. Its potency as a legal issue, however, is limited. That, at least, is the outcome of R (Wild Justice) v OFWAT [2023] EWCA Civ 28.
Sewage polluting the River Coln, at Fairford, Gloucestershire, this January. Photograph: Graeme Robertson/Guardian
The Claimant, a not-for-profit organisation which advocates for the protection of wildlife and nature, asked the Court of Appeal for permission to apply for judicial review of the Respondent’s alleged failure to perform its duties to regulate the discharge of raw sewage.
Permission had already been refused twice below – on the papers by Ellenbogen J, and at an oral hearing by Bourne J. This appeal was heard by Bean LJ.
In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.
Photograph: Tom Pilgrim/PA; the Guardian.
The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:
the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.
The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year.
Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.
But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:
Richards is, at its core, a case about the proper relationship between the courts, regulators and third parties who engage in potentially hazardous activities, but the Claimant in the case was none of these. Rather, it was Mathew Richards, a 6-year-old boy who suffers from lung problems, recovery from which was inhibited by emissions of hydrogen sulphide gas from the Walleys Quarry Landfill Site which is situated near his home in Staffordshire. The central question was whether the Environment Agency (EA) had taken sufficient steps to discharge its legal duties to protect the Claimant.
In Richards, the Court of Appeal set aside a declaration of Fordham J in which he had spelled out in some detail the scientific and regulatory goals that the EA would have had to meet in their regulation of emissions from the landfill. It is an interesting case for several reasons: it is the first domestic case to consider the human rights standards applicable to regulators tackling present threats under article 2 ECHR (the right to life); it discusses the limits of judicial power in the context of specialist regulators; and it also addresses complex and important questions about the requirements for, and functions of, judicial declarations.
ELF are acting for acting for local residents in the Forest of Dean on a translocation of pine martens from Scotland. They discuss bats, other protected species and relative success of the introduction of beavers to the British Isles with Rosalind English.
Through a collaboration with the Environmental Law Foundation we bring you Episode 126, a panel discussion with environmental experts Mark Avery and Nikki Gammans in discussion with Carol Day, consultant solicitor with Leigh Day. This is the first instalment of two of these panel discussions.
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.
On 30 March 2018, whilst working on the demolition of an oil tanker on the beach at Chittagong, Bangladesh, Mr Mollah fell to his death.
There is powerful evidence that essentially manual ship breaking of this sort is extremely unsafe and carries environmental risk given the asbestos and heavy metals aboard: see e.g. the work of NGO Shipbreaking Platform here. It does not take much more than a glance at the photographs to appreciate the problem. Conditions were grim; Mr Mollah was working at least 70 hours a week for long pay. Some 200,000 workers are thought to work under these conditions.
But this litigation is happening in the UK Courts. Mr Mollah’s widow did not even know the name of her Bangladeshi employer and she did not sue the owner of the “yard” there – in practice, the beach.
The Fisheries Bill 2020, part of the government’s core legislative program on post-Brexit environmental policy, is currently in the House of Lords at committee stage, and is expected to receive royal assent in the coming months (although exactly when is subject to how successfully the House of Lords can adapt to meeting via Microsoft Teams). It would establish Britain’s departure from the Common Fisheries Policy (CFP) on January 1st 2021, and sets out how fishing rights would work post transition period and CFP.
Given the passion that fishing rights raise, you might be forgiven for thinking that they were absolutely essential to the functioning of the UK and EU economies. In fact, fishing accounts for around 0.1% of both. A joke going around environmental blogs is that green bills are like buses – none come when you need them, then they all arrive at once. Perhaps for the Environment and Agriculture Bills – discussed by me here and here. But the Fisheries Bill feels more like the Brexit Bus than a local routemaster. It promises the repatriation of sovereign powers and gains in the millions by taking back control of our waters, while hiding potential losses in the billions, if issues with fishing rights derail trade negotiations – a slim but real possibility.
Even the most entrenched remainer, however, would have to recognise the multiple failures of the CFP. It has been plagued by mismanaged quotas and outsized lobbying interests since its inception, and it has clearly favoured certain member states over others. The Fisheries Bill has as such been largely well received by environmental groups, such as Greener UK, who comment that the “focus on climate change and sustainability is very helpful”. I’ll start with what the bill actually says, then discuss the EU negotiation position and conclude with a few comments about what the legislation may mean for the future relations.
Good news from the crisis front, although I’m afraid not the one we’re all thinking of: the government’s Agriculture Bill, which sets out its major post-Brexit agricultural policy, has recently passed committee stage and will soon (coronavirus permitting) be presented to the House of Lords. It shows ambition from the government to develop a post-Brexit agriculture policy with laudable commitments to harnessing the power of farmers to help address the climate crisis, and helps to address issues such as food security. Along with the Environment Bill, discussed here, it constitutes some of the core legislation aimed at achieving the government’s Net Zero by 2050 goal.
The government’s haunting refrain, since their 2018 ‘Health and Harmony’ consultation on post-Brexit agricultural policy, has been “public money for public goods”. The bill puts this into practice by giving the secretary of state power to dismantle the subsidy schemes of the Common Agricultural Policy (CAP) and replace it with the Environmental Land Management Scheme (ELMS). Under this scheme, farmers will be awarded for specific activities with ‘public goods’: good practices that further environmental goals in areas such as biodiversity and soil health that the market does not sufficiently incentivise.
If your domestic mutt makes friends with a wolf, and is prepared to eat and play with this visitor from the wild in your garden, does that deprive said wolf of the protection of the EU rules on the protection of listed species? AG Kokott at the European Court of Justice has just handed down her opinion on this tricky question of conservation referred to the Court.
Background law
The Habitats Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora calls for the introduction of a system of strict protection for species, such as the wolf (Canis lupus), which are listed in Annex IV(a) thereto. However, must that system of protection also be applied in the case where a wolf plays with dogs in a village? That is the question that has been put to the Court in these proceedings. As the AG continues
Even in its specific form, that question may be of greater practical importance than one might think. The answer to it will be decisive above all, however, in determining whether the substantively extensive protection of species provided for in the Habitats Directive is primarily relevant to natural and semi-natural areas, that is to say, in particular, to activities such as agriculture, forestry and hunting, or whether it is to be taken into account without restriction in all human activities, such as the operation of roads.
You only have to think about this for a few seconds before realising the far reaching implications of the latter interpretation.
The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.
Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.
Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?
R (ClientEarth No.3) v Secretary of State for Environment, Food & Rural Affairs, Garnham J, 21 February 2018, judgment here
DEFRA has been found wanting again, in its latest attempt to address nitrogen dioxide in air. This is the third time. Yet DEFRA’s own analysis suggests that some 23,500 people die every year because of this pollutant.
I have told the story in many posts before (see list at bottom), but the UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) since 2010. The Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”: Article 23.
We have now had 3 Air Quality Plans, the first produced in 2011 and quashed in 2015, and the second produced later in 2015, declared unlawful by Garnham J in November 2016.
The third, in this judgment, was dragged out of DEFRA in July 2017, after various attempts to delay things.
Dover District Council v. CPRE Kent [2017] UKSC 79, 6 December 2016, read judgment
The Supreme Court has just confirmed that this local authority should have given reasons if it wished to grant permission against the advice of its own planning officers for a controversial development to the west of Dover.
The interest is in the breadth of the decision – how far does it extend?
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