Striking a Legal Balance to Protect our Environment
SOURCE: THE SCOTSMAN, MARCH 2008
Environmental issues continue to sit near the top of the political agenda: how do we source ‘clean’ energy, can we stop global warming, how do we create less waste and better conserve resources? Inevitably, opinions differ as to what the priorities are, and how best to achieve them.
As these issues have become hotter topics, so has there been a boom in a veritable industry of environmentalism, each with its own vested interests: carbon footprinting experts, sustainability consultants, and green lifestyle gurus, as well as the traditional range of environmental organisations, from those with a wider public interest outlook (Greenpeace, WWF, FoE), to those with a narrower vision (RSPB, BugLife).
Thus, whenever anything new is planned (factory, railway, housing development, motorway), the appropriate voices will be raised by those who claim to have an interest (including a public interest) in the outcome.
The law does its best to balance these competing interests, and industrial operators are constantly under pressure to behave strictly in accordance with their permits, and with full respect for the protections afforded by environmental law. In some countries, like the USA, the courts have readily recognised that environmental groups have the legal right to step in where the law is in danger of being broken – witness, for example, the ongoing efforts of environmentalists to ban the US Navy’s new sonar, alleged to be so noisy that it disorients whales.
But by comparison, in Europe, it was feared that fewer and less expansive legal protections were available to those wanting to make an environmental challenge. In some legal systems, challenges could only be brought if you were directly affected by an alleged infringement – you’d simply not have a right recognised by a court to bring a challenge on behalf of the general public interest. And even if you had a recognised right, most people would be reluctant to raise a challenge for fear of losing the case, and then having to meet the other party’s legal costs.
To improve matters, the UN encouraged most of the countries of Europe to sign up to a Convention on (amongst other things) “Access to Justice” in environmental matters. This duly happened in June 1998 at Aarhus, in Denmark. One of the Aarhus Convention’s aims was that environmental regulators should be more accountable for their decisions, and that existing environmental law (of which there is a huge amount) should be properly policed and enforced, with effective judicial mechanisms being open to the public to challenge any actions that might infringe their personal interests or the wider public interest.
When the European Commission subsequently drafted a Directive designed to implement this, they even expressly recognised that the threat of action from the public would likely encourage a general improvement in the practical application of environmental law.
With such noble and laudable aims, how come that aspect of the Convention seems to have died a death? After all, it’s nearly 10 years since it was signed, and coming up 5 years since the draft Directive was tabled.
One possibility is sheer complacency. The new law would require any legal proceedings to be “objective, equitable, expeditious and not prohibitively expensive”. Despite several recent reforms of our court systems designed to speed up the process and thereby cut the cost of litigation, it is still far from the reality, still less the popular perception, that court proceedings can be described by the above adjectives. Particularly so when the current route of challenge for environmental actions is by way of “Judicial Review”, a notoriously narrow and legalistic form of proceedings which essentially revisits the manner in which a decision was reached, rather than reviewing whether it was substantively right.
Yet when the UK ratified the Convention in 2005, the government indicated that the UK’s administrative and judicial systems were already fully compliant with the above requirements.
One of the leading judges in the English Court of Appeal, and a specialist in Environmental matters (Lord Justice Carnwath), has written that “Litigation through the Courts is prohibitively expensive for most people unless they are poor enough to qualify for legal aid, or rich enough to be able to undertake an open-ended commitment to expenditure running to tens or hundreds of thousands of pounds.”
This sentiment is echoed in recent European Commission research. It found that, in the UK, the main obstacle to access to justice for individuals or environmental groups remains the issue of costs in judicial review cases. How much will they be if you lose? At the beginning of a case it is impossible to know, and that uncertainty means that those with a genuine interest (which can include other industrial operators perhaps unhappy that a competitor is getting a light regulatory touch) are often unwilling to risk bringing proceedings.
These perceived barriers to environmental justice, of whether you have a sufficient interest to raise an action, whether an adverse costs outcome is dissuading parties from raising proceedings, and whether the current mechanism of judicial review is appropriate for environmental challenges, have been under discussion for some time.
Whither Scotland? One person to listen to is Lord Reed, one of the Court of Session judges. He is Vice-President of the EU Forum of Judges for the Environment as well as a member of the UN Task Force on Access to Justice.
He comments:
"We in Scotland are fortunate in the quality of our environment. We are also fortunate in the systems that we have in place to protect it."
Unlike most of the world’s inhabitants, we have a well-developed body of environmental law, and well-developed systems for implementing it. Nevertheless, difficult decisions sometimes have to be taken as to how a balance should be struck between the protection of the environment and other priorities. As is to be expected in a democracy, decisions as to where the public interest lies are generally the responsibility of elected bodies. Such decisions are usually taken by local authorities, with a right of appeal to the Scottish Government. Most appeals are decided by Reporters, who are respected for their integrity and independence. The most important appeals are decided by Ministers, after fact-finding by a Reporter. At all levels, the integrity of such decisions is protected by our political system, by a free press, and by the courts.
The role of the courts in this field is limited, but nevertheless of vital importance. It is not for the courts to decide whether the benefits of a proposed development outweigh the value of the environment that will be lost. The courts do however have to ensure that decisions are taken in accordance with the law. That involves checking that the decision-maker, whether a local authority, a Reporter or a Minister, has respected procedural rights, that decisions have been taken on grounds that are lawful and reasonable, and that adequate reasons have been given.
Experience in other countries demonstrates that judges, as much as politicians and officials, may come under pressure to override environmental law. We are fortunate to have a legal and judicial system which functions transparently and honestly. But that is not to say that there is no room for improvement.
Although our democratic constitution is much older than the EU or the UN, recent efforts by those bodies have strengthened democratic involvement, and access to justice, in relation to the environment. The UN’s Aarhus Convention, and the EU legislation implementing it, have been reflected in domestic legislation concerned with freedom of information and environmental assessment. The Government has also supported research on access to justice in the environmental field, with a view to considering further reforms. The findings suggest that, notwithstanding the efforts made, there remain some difficulties.
One difficulty concerns the cost of litigation. The problem is not confined to environmental cases, and exists despite our having one of the world’s most comprehensive legal aid schemes. There is no easy answer to the problem. It is mitigated in the environmental field by the use of Reporters, rather than the courts, to decide a large proportion of appeals, and by the role of public authorities, such as SEPA and the Scottish Information Commissioner, acting on complaints from members of the public. To the extent that matters require to be brought before the courts by private individuals or organisations, however, the complexity of environmental cases makes it almost inevitable that the cost of legal proceedings will be relatively high. Someone has to pay the lawyers involved, and it is usually the losing party.
A recent decision in the Court of Session has however indicated that protective orders for expenses may be granted in suitable cases. Such orders provide a means of limiting at the beginning of proceedings the expenses that can be recovered from an unsuccessful applicant. They are intended to allow an applicant of limited means to have access to the court, in a case raising issues of general public importance, without the fear of a substantial order for expenses being made against him or her.
The cost of litigation is also one of the principal issues being examined in the current review of civil justice. That review should result in more cost-effective court procedures.
On another positive note, British judges are playing an important role in international efforts to improve the application of environmental law, particularly in countries of the former Soviet Union, where the environment is under much more severe pressure than in this country, and which sometimes lack the democratic institutions and independent judiciary which we are fortunate to enjoy.
FOR FURTHER INFORMATION PLEASE CONTACT: VINCENT BROWN