Common Law Review

Logo Common Law Review
The Common Law Review is an academic law journal published in print twice a year by the Common Law Society in Prague.

General Partner

Partners

 

 

Read more to become an author

Access to Environmental Justice

Print page

Written by: Sir Robert John Anderson Carnwath

▼ Page 3

"3…. each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4. … the procedures referred to in paragraph… 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive."

(Aarhus Convention Art 9)

1. Background — judges and the environment  [1]

In August 2002 some 120 senior judges from around 60 countries met at the invitation of the United Nations Environment Programme ("UNEP") for a Global Judges' Symposium. This took place in Johannesburg on the eve of the World Summit on Sustainable Development. At the end of the meeting the judges adopted the so-called "Johannesburg principles on the role of law and sustainable development". It contained the following statement:

"We affirm that an independent judiciary and judicial process is vital for the implementation, development and enforcement of environmental law, and that members of the judiciary, as well as those contributing to the judicial process at the national, regional and global levels, are crucial partners for promoting compliance with and the implementation and enforcement of international and national environmental law."

They also recognised the urgent need to strengthen the capacity of the poor and their representatives to defend environmental rights. They called for a programme of work to improve the capacity of those involved in the process of promoting and enforcing environmental law. One aspect of the programme would be the improvement in the level of public participation in environmental decision-making, access to justice, and public access to relevant information.

Their call to action was taken up by the governing council of UNEP in its session in Nairobi in February 2003 following which, UNEP has undertaken an extensive programme of work, in which I have had the privilege to be involved at several levels, internationally, through the Commonwealth, and in Europe.

Underlying this project have been four fundamental ideas: first, that the task of safeguarding the environment for present and future generations, while providing an acceptable standard of life, is probably the greatest challenge we face in the 21st century; secondly, that time is running out; thirdly, that the principles which should guide our response to that challenge (sustainable development, precautionary principle, public trusteeship) form a shared pool of knowledge and experience, which is now recognised in one form or another by most of the legal systems of the world; and fourthly, that judges at all levels, national and international, are uniquely placed, as decision-makers and opinion-formers, to put those principles into practice.

2. Aarhus as a practical tool

Judges cannot operate in a vacuum. They depend on cases coming before them though which they can enforce and reinforce laws for the protection of the environment. That in turn depends on there being interested citizens or groups willing and able to undertake the burdens and risks of bringing suitable cases. Without their involvement, Aarhus would remain a dead letter; but the rights guaranteed by Aarhus provide the essential means for their activities to be effective and to achieve results.

The third "pillar" of the Aarhus Convention guarantees that participation and access to information rights provided by the Convention can be exercised. The access to justice provisions are closely related to the other parts of the Convention. Article 9.1 of the Convention requires the establishment of a review procedure to address a refusal to disclose "environmental information". Article 9.2 provides that "within the framework of its national legislation" the state must ensure that members of the public having "a sufficient interest" are able to challenge the "substantive or procedural legality" of any decision, act or omission, which is within the categories subject to Article 6. Under Article 9.3 members of the public must have access to "administrative or judicial procedures" to challenge acts and omissions by private persons and public authorities which contravene provisions of its national environmental law.

Article 9.3 recognises the importance of the public enforcement of environmental law in general, by providing for direct action against polluters or regulators. The philosophy behind this seems to be that public participation is beneficial in the whole process of environmental regulation (from assessment right through to enforcement).

Particularly important is Article 9.4 which provides that the procedures for rights of access to justice shall provide "adequate and effective" remedies, including injunctive relief as appropriate, and be "fair, equitable, timely and not prohibitively expensive". In determining "standing" of the public concern, the Convention defers to national law, but emphasis is given to "the objective of giving the public concerned wide access to justice". Furthermore, the Convention's definition of "the public concerned" (Art 2.5) provides that "non-governmental organisations promoting environmental protection and meeting any requirement under national law" are explicitly deemed to have an interest in environmental decision-making.

3. Access to justice across the world

My work with UNEP revealed plenty of examples of cases from round the world, which illustrate the power of the courts to aid the protection of the environment in a practical and sometimes inventive way, in test cases brought by environmental groups. For example, constitutional guarantees of a healthy environment, or even simply of the right to life, may be adapted by judicial ingenuity to provide a means of enforcing basic environmental standards.

The Supreme Court of India has led the way in showing what can be achieved by the courts in countries where regulatory controls are deficient. The right to life under the constitution has been interpreted as

▼ Page 4

giving each individual a right to a healthy and pollution-free environment. At the same time, by abandoning strict principles of "standing", the court recognised the rights of citizens generally to raise issues of public importance and thus pave the way for "public interest litigation" as an important tool in promoting environmental protection. Equally important was the court's willingness to devise new remedies, for example putting in place expert committees to supervise environmental measures and monitor their performance. A famous example was the Vellore Citizens' Welfare case [2] in which the court held that principles of "sustainable development", including the "precautionary principle" and the "polluter pays" principle, were part of Indian law. In response to a petition complaining of pollution of the water supply to the claimants' area by untreated effluent from tanneries, it ordered the central Government to set up an authority and to confer on it the powers necessary to remedy the situation; it also established arrangements to enable families who had suffered to be compensated by the polluters.

Other supreme courts have been no less active. In the Eppawela case in 2000,[3] the Sri Lankan Supreme Court found that a Government proposal to lease a phosphate mine to an American company for 30 years conflicted with principles of sustainable development and had not been subject to adequate environmental assessment. In emphasising the importance of public access to environmental information and to the courts, it drew on the policies of the European Commission and the Rio Declaration, which were used to provide substance to the fundamental rights guaranteed by the constitution.

Such cases are not confined to the common law world. The Supreme Court of the Philippines in the Oposa case confirmed the right of a group of children to bring an action on their own behalf and on behalf of generations yet unborn complaining of excessive timber felling operations permitted by the Department of Environment. The complaint was based on the right to "a balanced and healthy ecology" incorporated in the 1987 constitution.[4] In Chile the Court of Appeal in 1988 made orders to prevent a mining company polluting the beaches of an area north of Santiago. It relied on Article 19 of the Chile Constitution guaranteeing the right to live in an environment free from contamination. The company was given a year to put an end to the dumping of its mineral tailings into the Pacific Ocean. [5]

In the European context, most countries can be expected to have (at least in theory) well-developed codes of environmental law and systems for policing it. The judicial role is likely to be more supervisory. A Handbook on Access to Justice under the Aarhus Convention (hereinafter the "Handbook") was published in 2003 by the Regional Environmental Centre for Central and Eastern Europe ("REC"), with support from a number of governments including the UK.[6] A series of case studies from 19 countries is used to illustrate the practical problems arising for access to justice under Article 9. The issues include: the role of NGOs, rules as to standing, financial guarantees for interim relief, delay, and costs. There is a variety of responses to these different problems.

For example, while most of the cases show a broad approach to standing, the Hungarian Court had apparently restricted the contribution of environmental NGOs by refusing them standing in cases not directly concerning "environmental" law as defined by the Hungarian Environmental Protection Act.[7] Thus a claim by an environmental NGO to review the grant of a permit for a road scheme along the southern shore of Lake Balaton was rejected for lack of standing, because the law concerned was not explicitly "environmental". A restrictive approach is also illustrated by a Czech case (the Sumava National Park case) which I have summarised in the Appendix. According to the study, the case had been referred to the European Court of Human Rights under Article 6 of that Convention.[8]

Cases from Spain and the United Kingdom (the Lappel Bank case [9] — see below) illustrate the problem of securing interim remedies where a bond or undertaking as to damages is required which is likely to be beyond the means of an NGO. Delay is illustrated by a Spanish case where an NGO was denied access to inspection reports prepared by a Government agency relating to nuclear facilities. It started proceedings for Judicial Review in 1995 which were decided in its favour four years later by the first court, but by July 2002 the appeal was still pending and access to the reports had still not been provided. [10]

More positively, an expansive approach to remedies is illustrated by a Dutch case in which the Dutch Society for the Protection of Birds brought an action against the owner of a Romanian oil tanker which had caused a large oil spill affecting thousands of sea birds in the North Sea. The society successfully claimed the costs of removing oil from the sea birds and maintaining bird asylums. [11]

4. Access to justice in the UK

Long before the ratification of Aarhus, the role of such non-governmental groups (NGOs) had been encouraged by the liberal approach adopted by the courts as to what constitutes sufficient interest. An early case was the Thorp Nuclear Plant [12] case in 1994, in which the environmental group Greenpeace were granted standing to challenge a proposed licence for a nuclear power plant (see Appendix).

The enforcement of environmental law in the United Kingdom generally lies in the hands of regulatory authorities who have the power to bring criminal actions and impose administrative sanctions. The premise of Article 9.3 is that direct or indirect citizen enforcement will help Government to expand its limited law enforcement resources to detect deviance and to ensure compliance with the law. For direct citizen enforcement, citizens are given standing to go to a Court or another review body to enforce the law rather than simply to redress personal harm. In the United Kingdom, a number of judicial actions provide citizens with a form of legal redress. Some examples are as follows:

1. Judicial Review allows citizens to be directly involved in judicial procedures against administrative acts or governmental action/nonaction; a good example was the Berkeley case (see Appendix),[13] brought by a local resident to stop a major development proceeding without a proper environmental assessment as required by European law.

▼ Page 5

2. The civil law of nuisance protects private interests against environmental interference by public or private bodies, by giving rights to seek damages or an injunction;

3. Private criminal prosecutions may be brought by individuals or NGOs. For example, the organisation Friends of the Earth claims that the Environment Agency prosecution in the "Sea Empress" case,[14] following serious oil pollution in the sea near Milford Haven in 1996, only took place as the result of their threat to bring a private prosecution.

Indirect citizen enforcement entails the participation of citizens in the enforcement process through, for example, citizen complaint. Such nonjudicial avenues of enforcement are reasonably well established in the United Kingdom through regulatory authorities' internal complaints procedures, the Local Government Ombudsman and the Parliamentary Commissioner for Administration.

Two main weaknesses have emerged in the UK system: first, the difficulty of obtaining interim relief; secondly, the risk of having to pay prohibitive costs. The first is illustrated by a case mentioned in the Handbook: the Lappel Bank case.[15] The case was brought by the RSPB to challenge the Secretary of State's decision not to include Lappel Bank (an important habitat for wild birds) within a Special Protection Area because of its economic potential for expansion of Sheerness port. The decision was eventually ruled unlawful by the European Court, because such economic factors were immaterial. The RSPB had been refused an interim injunction to confer temporary protected status on Lappel Bank, because it was unable and unwilling undertake to compensate the port of Sheerness for its losses, if the case failed. Thus, although RSPB eventually won the case, the development had already begun, and the wildlife value of Lappel Bank had been destroyed. (In the Handbook, this case is contrasted with a German case relating to a part of the Baltic Sea motorway where an environmental NGO was able to obtain a temporary injunction to prevent possible damage to a protected area, without having to post a bond or give any undertaking as to damages, even though the court eventually ruled in favour of the Government. [16]

Secondly, the cost barriers to access to justice in the UK are as significant as the legal barriers. The Convention says nothing about the question of legal aid or the distribution of costs between successful and unsuccessful parties. The financial burden of litigation has clear implications for those who can influence these decisions. Industry and developers have the greatest potential to use access to justice provisions, not only because they have the resources to do so, but also they can set off the costs against clear economic benefits from the granting of regulatory permission. In the UK private litigants, and NGOs, risk having to pay the costs of the other party if they lose, and the costs may be very great.

A coalition (The Coalition for Access to Justice for the Environment), including a number of NGOs such as Friends of the Earth, Greenpeace, the RSPB and WWF-UK, has recently made a complaint to the European Commission of a failure of the United Kingdom to comply with Community Law.[17] At the heart of the complaint is the issue of costs and whether the current law complies with the Public Participation Directive[18] which follows the Aarhus wording by requiring access to justice on terms which are fair, equitable, timely and "not prohibitively expensive". The outcome of the complaint remains to be seen.

The same concerns were highlighted in the 2007 European Commission Country Report for the United Kingdom on "Measures on access to justice in environmental matters (Article (9(3))".[19] Reports were prepared by consultants for each of the 25 member states, focusing on the measures allowing members of the public to contest actions or omissions by public authorities. The conclusion was that, whilst the procedure of judicial review exists in the United Kingdom, the costs of bringing an application represent a significant obstacle. The example given of the costs of a case in the UK (189,000 Euros) compared to that in Hungary (500 Euros) shows the extremities of the variation between member states.[20] The average costs quoted (2,000 - 5,000 Euros) supports the conclusion that the UK's procedures are unusually expensive.

5. Conclusion

Judges have a vital role to play in the protection of the environment. The nature of that role will differ depending on the legal system of the country concerned. In countries where the administrative systems are relatively undeveloped, the courts have been able to fill the gap by imaginative interpretation of constitutional guarantees. In Europe the regulatory systems are much better developed and the role of the courts is therefore likely to be one of supervision. The United Kingdom has had elaborate administrative arrangements for control of potentially polluting operations since the industrial revolution of the 19th century. The influence of Europe in the last 30 years has been important in encouraging a more coherent system of specifically "environmental" law. The judges have played an important part in these developments. However the cost of court proceedings is a serious obstacle to widening the role of the courts. If access to environmental justice is to be widened in a way which benefits the public in general, all aspects of the Aarhus principles must be observed.

Appendix

Three illustrative cases.

1. Sumava National Park - Czech Republic [21]

Throughout the period 1998—2001, the Sumava National Park Authority logged in Zone 1 of the park; the most strictly protected in terms of conservation. The justification was that the infestation of bark beetles had to be controlled. In spite of the logging, the bark beetle population expanded, provoking interest from environmental groups that the process of logging was contributing to the infestation. The decision to log could only be made through an administrative process in which interested parties could apply to participate in the proceedings and offer recommendations in the decision-making.

In 1998, the Park Authority requested an exemption from the Ministry of Environment to the legal protection regime provided for by the Landscape and Nature Act. An exemption is only possible when the public interest overrides the wish to protect designated species. The exemption was granted on the grounds that the logging operation was itself an act of environmental protection and therefore no conflict existed. Hnuti DUHA (Friends of the Earth, Czech Republic), a regional NGO, filed administrative complaints in response to both the granting of the permit and the Sumava Park Authority's approval of logging in Zone 1.

▼ Page 6

The NGO filed annual administrative appeals to the Ministry which failed. Subsequently, the NGO filed a complaint before the High Court in Prague. The High Court did not grant the NGO standing, ruling that "the rights of NGOs could not have been violated, because NGOs have no substantive rights in similar administrative processes". The NGO pursued the matter to the Constitutional Court where it was held that participants in such matters only have 'procedural rights' which do not include the right to a lawful decision-making process. A complaint to the National Environmental Monitoring Agency followed which was refused.

2. Greenpeace and Thorp Nuclear [22]

The company was Thorp reprocessing plant, which was authorised to discharge radioactive waste from its premises. In 1992 it applied for new authorisations for its new thermal oxide reprocessing plant and, pending the grant of those authorisations, sought and obtained a variation of the existing authorisations to enable it to test the new plant. Greenpeace, representing the interests of 2,500 supporters in the area, sought judicial review of the decision to vary the existing authorisations. It was argued that the operations were different from those covered by the original variations and so a variation was not appropriate and that, if the new authorisations sought by the company were not granted, the testing would have been useless and so unjustified.

The respondent argued that Greenpeace had no legal standing to bring the case and that under the Radioactive Substances Act 1960 the variations could validly be varied.

The Court ruled that in considering the issue of locus standi, consideration must be had to the nature of the applicant, its interests in the issues raised and the remedy it sought to achieve. The judge held that they had a sufficient interest, saying:

"I reject the argument that Greenpeace is a 'mere' or 'meddlesome busybody' … I regard the applicants as eminently respectable and responsible and their genuine interest in the issues raised is sufficient for them to be granted locus standi"

Nonetheless, the case failed. The company were held not to be acting unlawfully; because they had a wide power to extend or contract its activities under the existing authorisations.

3. Lady Berkeley and the Fulham Football Club [23]

Fulham Football Club made an application for planning permission and listed building consent to rebuild part of its stadium on the banks of the River Thames. The proposal outlined the creation of a riverside walkway which would encroach slightly into the river and require the remodelling of a retaining wall with effect on the river's habitat. The local planning authority granted the application. The Secretary of State held a public inquiry into the application and granted permission for the project
to succeed subject to a number of conditions.

The applicant, Lady Berkeley, was a local resident with a special interest in the river wildlife. She applied to the High Court challenging the decision, on the grounds that there had been no adequate environmental impact assessment (EIA), as required by the European Directive (Article 2(1) of Council Directive (85/337/EEC)). Her case failed in the High Court and the Court of Appeal who thought that a formal environmental assessment would have made no difference to the quality of the decision or the eventual result. She appealed to the House of Lords, which held that the Secretary of State's decision to proceed without a proper environmental assessment could not be upheld and the planning permission was quashed. The case is particularly important because of the clear statement of the importance of EIA. It had been argued that all the relevant information was available in various documents before the inquiry. That was not held to be not enough. Lord Hoffmann said:

"I do not accept that this paper chase can be treated as the equivalent of an environmental statement. In the first place, I do not think it complies with the terms of the Directive. The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language. It is true that article 6.3 gives Member States a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted. But I do not think it allows Member States to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the Annex III information which should have been provided by the developer."

Sir Robert John Anderson Carnwath CVO QC was born on 15 March 1945 and is a British judge. He was appointed as a High Court judge on 3 October 1994, in the Chancery Division, and received the customary knighthood. He served as Chairman of the Law Commission from 1999 to July 2002. He was promoted to the Court of Appeal on 15 January 2002 and, as is customary, became a member of the Privy Council. He was formally sworn in as the first Senior President of Tribunals on 12 November 2007. This paper was given on the occasion of the international conference, which was held by Green Circle in Prague, April 22, 2008.

Footnotes

  1. This paper was given on the occasion of the international conference, which was held by Green Circle in Prague, April 22, 2008.
  2. Vellore Citizens' Welfare Forum v Union of India AIR [1996] SC 2715.
  3. Bulankulama and Others v. Secretary, Ministry of Industrial Development and Others (Eppawala Case) Sri Lanka Law Reports [2000] 3, pgs. 243.
  4. Oposa and others v Fulgencio S Factoran GR No. 101083
  5. Flores and others v Codelco Court of Appeal 23.6.88
  6. Stec, Stephen (Ed.). Handbook on access to justice under the Aarhus Convention. Regional Environmental Centre for Central and Eastern Europe: March 2003. Available at http://pdc.ceu.hu/archive/00002416/01/accesstojustice.pdf
  7. See decision of the Supreme Court in Somogy Nature Conservation Organisation v. Ministry of Traffic, Telecommunication and Water Management of Hungary, cited in Handbook, pg. 147 - 149.
  8. See decision of the Constitutional Court No. IV.ÚS 45/2000 - Hnuti DUHA, dated 25 May 2000, cited in Handbook, pg. 113 - 115.
  9. Case C-44/95, R v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805
  10. See decision of High Court of Madrid Autonomous Region in EEA v. CSN, dated 2 March 1999, cited in Handbook, pg. 191 - 192.
  11. See decision of Arrondissementsrechtbank in Rotterdam, Dutch Protection of Birds Society v Borcea, dated 15 March 1991, cited in Handbook, pg. 167.
  12. R v Inspectorate of Pollution ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329.
  13. Berkeley v Secretary of State for the Environment [2001] 2 AC 603.
  14. See Environment Agency v Milford Haven Port Authority and Andrews [1999] 1 Lloyd's LR 673.
  15. Case C-44/95, R v Secretary of State for the Environment, ex parte Royal Society for the Protection of Birds [1996] ECR I-3805.
  16. Handbook, pg. 143 - 144.
  17. See the document available at http://www.unece.org/env/pp/compliance/C2008-23/Amicus%20brief/AnnexPComplainttoCommission121205.doc
  18. Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC
  19. See Milieu. Measures on access to justice in environmental matters (Article 9(3)) Country report for United Kingdom. January 2006. Available at http://ec.europa.eu/environment/aarhus/study_access.htm
  20. See Milieu, ibid., pg. 15.
  21. See decision of the Constitutional Court No. IV.ÚS 45/2000 - Hnuti DUHA, dated 25 May 2000. This summary is taken from the Handbook, pg. 113 - 115.
  22. R v Inspectorate of Pollution ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329, reported in Handbook, pg. 113 - 115.
  23. Berkeley v Secretary of State for the Environment [2001] 2 AC 603.