Public Participation Environmental Information And Access To Justice Notes

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 –

  • 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 –

  • 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 –

  • 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:

  • 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 New Zealand

  • 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)

  • 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?

General

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

• Political –

  • 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”

  • Another non-judicial means of accountability is that of ombudsmen – these are independent bodies that have powers of investigation

    • An...

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