Environmental Courts and Political Opportunism

 

 

On the 12th December 2017 Theresa May wrote an opinion piece in the Guardian which began ‘[t]ackling climate change and mitigating its effect for the world’s poorest are among the most critical challenges that we face’. I have found that the more reverberant texts on this theme include the sober reminder that we face an unprecedented environmental crisis already responsible for high levels of human suffering. If air pollution, solid waste deposition and soil erosion continue at the current rate, we, as a species won’t last long. Separated only artificially, humans are to the Earth what waves are to the ocean. Once these concepts are appreciated, a need to overlook the inherent irony and pursue any opportunity to make reparations becomes apparent. In this light, the prospect of an Environmental Court, capable of building a coherent body of jurisprudence and specialist expertise, being set up after Brexit, should be discussed. This level of reform seems proportionate if the Government of the day is to be held to account; something especially important considering that a post-referendum YouGov poll found that 4 of 5 adults back maintaining or strengthening levels of environmental protection when the UK leaves the EU.

As a result of Parliamentary response to national concern, various international treaties and adventurous claimants, the law has come to play a central role in the management of the environment. In more active countries such as Sweden, New Zealand and Australia, there already exists some variant of an Environmental Court with jurisdiction over areas such as planning, resource management, pollution regulation and licence appeals. Elsewhere, India’s Supreme Court has developed its own powerful environmental jurisprudence, finding that the right to a pollution-free environment is part of the right to life under the Constitution in Charan Lal Sahu v Union of India AIR 1990 SC 1480.  Due to the traditions of generalism in the courts and political accountability in appeals from regulatory agencies, it seems the closest thing the UK comes to caring is the Planning Inspectorate (PINS). While an Environmental Tribunal was set up in 2010 consisting of specialist judges, its jurisdiction is haphazard, unprincipled and practically limited such that it barely deserves the name (there are in fact 64 separate legislative provisions concerning appeals to decisions under various legislation, all going to places other than the Tribunal).

Planning Inspectors determine over 99% of all planning appeals, yet have no constitutionally defined jurisdiction and allow for limited public access. Procedural human rights compliance is cloudy, with the case of Bryan v United Kingdom [1996] EG 137 placing a question mark over whether the need for an independent and impartial tribunal in determination of civil rights under Art 6 ECHR is satisfied by the PINS system. Given that PINS is an executive agency, the Secretary of State could at any time revoke the inspector’s powers to determine the appeal, muddying their independence. The court concluded that the capacity to appeal to the High Court provided sufficient safeguards. This is clearly not ideal; the appeals process is expensive, limited to a point of law and the grounds of judicial review are disproportionately narrow. The threat of executive intervention remains with the result that a planning inspector is prone to be mindful of significantly diverging from government policy in determination of appeals.

Brexit represents a more apparent cause for unease amongst environmentalists, with 90% of the UK’s environmental law emanating from the EU. Current plans to effectively transpose EU law into UK law involve significant use of Henry VIII powers (these are powers conferred onto the executive by Parliament, which allows the executive to essentially bypass Parliament in changing legislation), sparking worry that Government Ministers will edit or even delete existing environmental protections. However, it seems there is reason for optimism, with the Government apparently seeking to strengthen its environmental credentials. In addition to Theresa May’s unexpected Guardian piece, the Department for Environment, Food and Rural Affairs’ Annual Report 2016-2017 states that ‘we have an extensive programme of work focused on preparing for a range of scenarios to make sure we deliver a green Brexit’. To quote Hallsworth et al’s Policy Making in the Real World, ‘the more one delves into the reality of policy-making, the more that policy cycles and their like resemble a comforting narrative that imposes specious order on a complex reality’. It wouldn’t be surprising if Brexit acted as a form of ‘ignition event’ for the establishment of a specialised Environmental Division of the High Court, as suggested by Robert Carnwath. This would offer a convenient political solution for a Government facing significant public pressure.

A common objection to such a move would be to suggest that there is nothing especially significant about this area of law that justifies the creation of a dedicated court. The distinctive feature of environmental law is that it has to do with the formal lack of private rights in the unowned environment and broader societal values. A court dedicated to protecting these niche values creates the potential for evolution of an innovative body of jurisprudence, constitutionally independent from the executive. A court composed of specialists from both legal and non-legal, scientific or policy backgrounds, would be better prepared for litigation following any legislative mess left by Brexit, and potent to review issues of unresolved complex scientific or technological controversy. Being open to the public, the court would have the effect of developing public consciousness in the environmental field. A factor of an Environmental Court suggested by Lord Woolf is the ability to overcome problems of high costs associated with normal civil litigation, implying an inquisitorial style as opposed to an adversarial one.

Another objection, described by McAuslan as ‘the centripetal argument’, would be the contention that it is the Government that should handle environmental concerns, due to potential for accountability in Parliament, rather than unaccountable judges. Parliament would just be tasked with reversing decisions deemed unacceptable by the Government of the day. McAuslan argues that this concern is sufficiently addressed by stressing the evolutionary nature of any court created; more powers could be shifted to the court as confidence in it grows and general principles of environmental law begin to emerge. In its inception, the PINS had no decision-making powers, but over time this changed. The same could be true with an Environmental Court.

To summarise, there may be hope that there is a wholesome ending to the narrative of environmental policy. The Environmental Court would alleviate concerns of a legislative post-Brexit mess, and develop a much-needed environmental jurisprudence, contributing toward raising public consciousness. This is made more likely by the fact that it would provide the Conservatives with sought after, politically exploitable ‘green credentials’.

A win-win for Theresa May’s government.

Finn Hill

14 January 2018

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