Amidst the root and branch opposition to socio-economic rights from some quarters, the idea that the Bill of Rights might contain an environmental right seems to have got lost in the smoke of this rather unedifying battle. The July 2012 Consultation on a Bill of Rights summarises the rival contentions well – see below.
I am ducking well away from the underlying question – should there be a Bill of Rights at all? – but support the proposition that, if there is to be such a Bill, it should contain some provision about the environment. Answers on a postcard to the Commission by 30 September, please, whether you agree or disagree with me, but in the interim, here is my penn’orth.
In a recent post I mentioned that there has been criticism of the scope of the EU Aarhus Regulation inserting provisions about transparency, public participation and access to justice into EU processes themselves. It struck me just how confusing the whole area of EU challenges to EU measures is, so I thought I would summarise it as best I can in this and a following post. Here goes; the going may get a bit bumpy, but it is important stuff. I hope also to give some EU context to the debate about whether something is or is not a legislative act under Aarhus which I trailed in that post.
The EU signed up to the Aarhus Convention on environmental matters, as have all the member states. And the EU has made member states implement Aarhus-compliant procedures in major areas such as environmental impact assessment and industrial emissions, via the 2003 Public Participation Directive. The EU also requires member states to introduce a wide-ranging right to environmental information, transposed in the UK via the Environmental Information Regulations. The European Court has also chipped in with its own Aarhus gloss in the Slovakian Bearcase; whenever a member state is considering some provision of EU environmental law, it must interpret that provision, if possible, so that it complies with Aarhus standards of public participation, even though those standards may be in the parts of the Aarhus Convention which have not received their own direct transposition into EU, let alone domestic, law.
R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD & RURAL AFFAIRS, Court of Appeal 30 May 2012, on appeal from Mitting J, 13 December 2011,
A newsflash, really, confirming that ClientEarth’s claim for a declaration and mandatory order against Defra in respect of air pollution was refused by the Court of Appeal, in line with the judgment below. And the lack of a link to the CA’s judgment because it is not available, I imagine, because the judgment was extempore, and it is being transcribed at the moment. Sadly, that does not necessarily mean it gets onto the public access site, Bailli, in due course: the first instance decision still languishes on subscription-only sites. So all I know is that ClientEarth’s appeal did not find favour with Laws and Pitchford LJJ, sitting with Sir John Chadwick, but this, as ClientEarth explains, may not be the end of the line.
The reverse suffered by the claimants in the noisy motor racing case case before the Court of Appeal last month was something of a body blow to common lawyers and environmentalists. So this latest development in nuisance litigation should be welcome news.
As David Hart’s report suggests, the Court of Appeal pulls no punches in its critique of the High Court judgment which dismissed the claims of 152 households on the basis that a landfill operator had abided by the terms of its permit. Reasserting the private law rights of individuals in nuisance actions, Carnwath LJ observes that this case has been
a sad illustration of what can happen when apparently unlimited resources, financial and intellectual, are thrown at an apparently simple dispute such as one about nuisance by escaping smells. The fundamental principles of law were settled by the end of the 19th century and have remained resilient and effective since then.
The common law, he notes, is best when it is simple. And in this judgement he returns nuisance to the simple statement of reciprocity and neighbourliness where it belongs.
There are a few propositions – not many – in Carnwath LJ’s judgment which will serve as a clear, short checklist for the viability of a nuisance action. Continue reading →
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.
In a plot worthy of a Hollywood film, the trial of six environmental campaigners charged with conspiring to shut down a power station has apparently collapsed after an undercover police officer switched sides.
The six were charged with conspiring to shut down the Ratcliffe-on-Soar power station in Nottingham in 2009. The case was due to start on Monday, but was abandoned after Pc Mark Kennedy contacted the defence team to say he would be prepared to help them. The prosecution subsequently dropped their case. Mr Kennedy had been intimately involved in the green movement since 2000.
A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.
Sixty years of human rights and it feels like they’ve been with us for ever. Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.
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