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Public Participation, Environmental Information and Access to Justice Notes
What is the relationship between UK public law and environmental law?
The Basic Relationship
Public law and environmental law have a relationship of mutual reinforcement - public law shapes environmental law, whilst environmental law can also shape public law.
There are a range of dimensions to consider with regards to the relationship between public and environmental law
Constitutional Law -
o It can be seen that UK constitutional law is relevant to environmental law in three ways:
1. It provides the framework that regulates the ability of Parliament to legislate in relation to environmental issues
2. Through regulating the relationship between citizen and state,
constitutional law affects the ability of individuals to act in relation to environmental problems
3. General constitutional doctrines such as the rule of law and the separation of powers are an ever-present influence on how legislation is drafted, interpreted and applied
Administrative Law -
o There are three important aspects of administrative law which are relevant to environmental law:
1. Administrative law constitutes administrative bodies
2. Administrative law empowers and limits public administration
3. Administrative law holds public decision-makers to account
EU/International Law -
o There are two dimensions to this:
1. The UK's dualist legal system means that international law and national law do not have an automatic connection
2. In the EU context, though, EU law is supreme
Though this is no longer the case
Much of environmental law takes the form of administrative law for two reasons:
1. The creation of environmental law requires the setting up of new public institutions
2. Given the need for expertise in carrying out those tasks, they were created by legislatures delegating discretion to executive institutions
Fisher, Scotford and Lange (2019) identify two broad categories of reason as to why environmental law causes problems for public law regimes: (i) the novel nature of interests in environmental law, and (ii) the need for considerable amounts of information and expertise The Nature of Interests
Environmental problems engage many different types of interest - there are therefore a range of legislative and judicial struggles to reconcile environmental interests with economic, social and other interests.
This can be an issue as environmental interests are oft viewed as being incommensurable with other values
An inevitable by-product of the different types of interest that are relevant to environmental protection is the creation and protection of new types of legal right
Bogojević and Rayfuse (2018) identify three different frames for understanding these new rights:
o Rights of nature - this refers to an eco-centric framing which sees the environment as capable of holding its own legal rights
In 2008 Ecuador recognised inalienable rights of nature in its constitution - other countries later followed suit including Bolivia and
Rights to the environment - this is an anthropocentric approach which seeks to expand and reformulate existing human rights in the context of environmental law
This sort of reasoning can be seen in the Urgenda case and those which followed (PUSH v Sweden)
o Environmental rights as participatory rights - this focuses on procedure and providing individuals and others with the rights, opportunities, and abilities to participate in environmental policy-making processes.
Information and Expertise
Environmental law is different to other areas of public law, in part, because of its intensive need for, and use of, information.
This need for information presents a number of problems for public law
There is the practical problem of how such knowledge and expertise can be integrated into administrative decision-making
This issue arises because, according to Fisher (2016), the historical approach was to keep research and expertise at arm's length from government and administration, whether through the use of committees, independent bodies, or contracting out
There is also the further issue of how to limit discretion in decision making which requires expertise and is information intensive
In Mott v Environment Agency, Beatson LJ said that "the need for a defendant to have its 'cards upwards on the table' is particularly important where the context is a technical or scientific one in which the defendant expects the courts to tread warily and accord a wide margin of appreciation to the decision-maker"
Moules (2011) has identified environmental judicial review claims as being amongst the most factually complex judicial review proceedings What accountability mechanisms operate in the environmental context?
Per Fisher, Scotford and Lange (2019), accountability at is most basic, means being required to give reasons or explanations for what one has done.
Davies (2001) has argued that accountability is best understood as process of which there are four stages:
Setting standards against which to judge the account
Obtaining the account
Judging the account
Deciding what consequences, if any, should follow
In the UK there are a range of accountability mechanisms:
Legal - the most obvious example of this is judicial review
o Tomkins (2003) says that "A political constitution is one in which those who exercise political power (let us say the government) are held to constitutional account through political means, and through political institutions (for example, Parliament). Thus, government ministers and senior civil servants might be subjected to regular scrutiny in Parliament. The scrutiny may consist of taking part in debates, answering questions,
participating in and responding to the investigations of committees of inquiry, and so forth"
o Another non-judicial means of accountability is that of ombudsmen - these are independent bodies that have powers of investigation
An example is the Health Service Ombudsmen
The Environmental Context
Alongside these general accountability mechanisms, there has been the evolution of specific accountability mechanisms in the environmental context
For instance, the Committee on Climate Change established under the Climate
Change Act 2008
Further, under this Act, Bache (2015) notes that there is a need to report annually to Parliament and there is an independent expert body (the
Committee on Climate Change) to advise on targets and policies and monitor progress
Per ClientEarth (2009), "the core philosophy of the Act is that this series of built-in duties, actions and reporting requirements, combined with the monitoring function of the CCC, and the scrutiny role of parliament, will create transparency,
accountability and political pressure to ensure that governments will comply.
Compliance with the legislation is therefore institutional and political" What is the role of judicial review in environmental law?
In recent years there have been debates about the constitutional justifications for judicial review.
Jowell (1999) notes that the legitimacy of judicial review relate to conceptual questions about institutional and constitutional competence
In order to second-guess a primary decision-maker, the courts must establish that the decision is with the appropriate realms of their jurisdiction
There are two senses of competence: (i) constitutional competence, and (ii)
institutional competence, both of which are necessary to ground the court's jurisdiction
Constitutional Competence - this involves a normative assessment of the proper role of institutions in a democracy
Institutional Competence - this involves a practical evaluation of the capacity of decision-making bodies to make certain decisions
Some matters are not ideally justiciable based on the inherent limitations of the process of adjudication.
o For instance, the adjudicative process is not ideally suited to deciding polycentric questions—those which cannot be settled in isolation from others which are not before the court— such as whether scarce resources should be allocated to one project or proposal in preference to others whose claims are not in issue.
This idea looms large in the environmental context
In Downs, Collins J said that He said "I am not qualified to decide between those views nor is it an appropriate exercise for a judge to undertake on judicial review. No doubt if it were clear that one view was tainted by irrationality in the Wednesbury sense, the court could so declare. But that is most unlikely to be established and, as it seems to me, we are here at the very fringe of what should properly be the subject of judicial review"
May LJ said in a similar vein in Campaign to End
All Animal Experiments that "The scientific judgment is not immune from lawyers' analysis.
But the court must be careful not to substitute its own inexpert view of the science for a tenable expert opinion."
o Collins J rightly points out that he should not review questions of fact in a judicial review action.
While the fact/ law distinction is fundamental to the operation of judicial review, it is constantly being blurred or crossed in the context of environmental law since factual assessment is closely interwoven with questions about the legality of decisions
Fisher (2001) has noted that the institutional and constitutional competences of the courts are closely interrelated
Judicial Review in the Environmental Context
Lord Diplock's grounds of review from the GCHQ case are relevant:
If there is an error in interpreting a statute or an EU Directive then this can amount to an error of law
R (on the application of Goodman) v Lewisham LBC
Facts: The question was the proper construction of the phrase
"infrastructure projects that are urban development projects"
for the purpose of the TCPA Regulations 1999
o However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgement. Rather, it involves the application of the authority's understanding of the meaning in law of the expression used in the Regulation
"where the criterion, upon which in law the decision has to be made, may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational"
Appling this approach to the facts of the case, Buxton LJ, it was found that the view taken by Lewisham was outside the range of reasonable responses that was open to the authority.
o Issues of relevancy can also give rise to illegality
A court will be willing to determine what is relevant and irrelevant,
but it will not rule on what weight should be given to any particular factor (Tesco Stores)
o The utility of Wednesbury unreasonableness is limited as it raises issues of institutional and constitutional competence noted by Jowell (1999)
An argument about irrationality can look too close to an argument about the merits of a particular decision, which is beyond the institutional, and arguably the constitutional, competence of the courts
Sullivan J was aware of this potential in Newsmith, where he said in relation to s288 TCPA that "the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits"
Procedural impropriety will almost entirely depend on the circumstances,
(Moseley) particularly the statutory context (Langton)
From this, it is important to note that there is a danger of talking about public law issues too generally in the environmental law context
Judge Frankfurter once said that, in applying public law principles to environmental problems, you need to read the statute … and he delegated legislation … and the directive … and the policy guidance, and also be aware of the bigger institutional picture
What does the Aarhus Convention say?
The Aarhus Convention is an international agreement, signed in 1998, which now has 47 parties including the EU and the UK, which entered into force in 2001.
The objective of the Convention is described in Article 1:
"In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and wellbeing, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention
These three aims ((i) access to justice, (ii) public participation in decision-making, and (iii)
access to justice are referred to as the three pillars of the Convention.
Being an international agreement, Aarhus is not directly binding in the UK. However, it has been implemented by the EU into a number of Directives.
Further to this the three pillars have been implemented through Regulation 1367/2006/EC
The Convention regime includes a Compliance Committee that considers complaints from the public that the Convention is not being complied with
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