#5269 - Access To Justice - Environmental Law

• Senior Courts Act 1981 – 31(3) – No application for JR shall be made unless leave of the High Court has been obtained in accordance with the rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

• Ex p National Federation of the Self Employed – Lord Diplock – It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited tax payer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

EU General Standing.

• 263(4) TFEU – Person may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

• Greenpeace (1998) – public interest groups would never satisfy the test for individual concern which was to be uniquely affected on the facts as would a person to whom the decision was addressed be.

• UPA (2002) – problems highlighted, but ignored, in the justification for not giving standing based on availability of preliminary references.

• Eurofer (2012) – to establish standing trade association had to show some of its members had standing on basis of individual concern or the decision being regulatory act.

ECJ – At times a measure of general application such as this can be of individual concern. Individually concerned when affected by the measure by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee. Being operators not enough since others are, or could be, operators.

Regulatory act covers all acts of general application except for legislative acts. This satisfied here. It must also not entail implementing measures. Here the processes which the decision requires to take place are implementing measures – MS must submit a list of installations covered along with provisional emissions allowances – Commission may reject those installations – MS to determine final list. Thus both MSs and Commission are required to adopt several implementing measures to eventually determine which installations have allowances.

Aarhus.

• Aarhus - 9(1) – Parties shall ensure that person who considers request under art4 to not have been answered in line with that article has access to review procedure. Must ensure that, if process is via court of law, another process is available free of charge or at inexpensive rate.

9(2) – Parties shall ensure people concerned (a) having sufficient interest, or alternatively (b) maintaining impairment of a right, shall have access to review of legality of any decision, act or omission subject to the provisions of art6.

What constitutes sufficient interest or impairment of a right shall be determined in accordance with national law and consistently with objective of giving wide access to justice. Interest of non-gov organization (2(5)) shall be deemed sufficient for (a) and (b) above. This part will not interfere with provisional or administrative review prior to judicial review.

9(3) – Parties shall ensure, if they meet criteria of national law, that public have access to procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

9(4) – Procedures above shall provide adequate remedies including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.

9(5) – Info must be provided to public on access to review procedures. Must consider establishment of assistance mechanisms to reduce financial barriers.

EU and Aarhus.

Evolution in Specific Areas of EU Law:

• 2003 Directive on plans and programmes relating to environment (Amending 85/337 + 96/61 also) - Art11(1) – Public with sufficient interest or maintaining the impairment of a right must have access to review of acts subject to public participation provisions of Directive.

11(3) – non-gov organisations.

11(4) – see 4 above.

11(5) – see 5 above.

• Djurgarden (2009) – Q’s of small non-gov organisations. AG – Non-govs (1) give expression to the general interest and (2) provide a collective dimension, (3) they also provide specialised knowledge. This strengthens courts by reducing claims and strengthening facts on which decision is made. Whilst Aarhus didn’t give public interest action it instead strengthened non-govs powers to balance this. Thus deliberate reinforcement of non-govs powers.

ECJ – non-govs promoting enviro protection are to have sufficient interest or a right which is capable of being impaired. National rules providing remedies for this are not to nullify effect. MS can fix number of members or require that non-gov’s objectives are environmental so long as it doesn’t defeat objective. Further they cannot limit access just because C was able to express views in a participatory phase of decision making process.

• Solvay (2012) – Art 11 applies to legislative acts.

• Lesoochranarske (2011) – Aarhus Art 9(3) does not have direct effect in EU law. Thus Art 9 provisions do not apply across the board in EU environmental law.

Implementation for Access to Justice at EU Level:

• Regulation 2006 on Application of Aarhus – Certain non-governmental organisations (Art11) may request internal review of an ‘administrative act’ by any ‘Community institution or body’ (Art10). Art 12 allows review before ECJ in limited circumstances. [Limits on which NGOs can claim based on fake NGOs, ‘Admin Acts’ limitation challenged though].

• Stichting (2012) – Here ‘Acts’ are defined as ‘Administrative Acts’ and in turn as ‘Acts of Individual Application’. Aarhus does not define ‘acts’ that are to be subject to the rules on review. ‘Acts’ should be interpreted in good faith in light of Aarhus’ objectives. Objectives are to give access to justice in environmental matters. A definition as acts of individual application is very limited in an environmental sphere since most are of public concern and general application.

Aarhus does not give a discretion as to the definition of ‘Acts’ as it does for procedural application of review.

Thus the restrictive definition given to acts in the Regulation is incompatible with Aarhus Art9.

UK and Aarhus.

Standing:

• Ashton (2012) – C applied for JR of a planning decision under s.288 Town and Planning Act 1990 (alternative to standard review) requiring ‘person’ to be ‘aggrieved’. UK planning law implements Art11 of Directive and so Art9 of Aarhus.

Court – Following principles apply to whether a person is aggrieved. (1) Wide access to courts required under Art11. (2) Normally participation in process required. (3) In many situations failure to participate is not a bar. (4) The nature and weight of the interest must be considered, sufficiency is important. (6) What might otherwise be sufficient might not be for 288. (8) While recognising need for wide access to courts weight may be given to public interest and delay involved in judicial proceedings.

Here his participation in process was not enough to give him standing. Also likely that he would fail under interest aspect of test. [Shows standing will still be a barrier even when implementing access requirements in 11.

Costs:

• Morgan (2009) – case didn’t involve any of the Directives which implement Aarhus.

Court – CPR 44 says that the unsuccessful party pays the costs of the other. Recently there has been greater willingness to waive this in public interest cases or to provide protective costs orders (PCO).

Sullivan report said: (i) the Aarhus prohibitively expensive applies to all expenses and not just court fees, (ii) it also applies to all proceedings including injunctive relief, (iii) if costs would prevent the ordinary man from embarking on a challenge as under Art9 then it is prohibitive, (iv) there should be no general departure from loser pays provided this doesn’t make it prohibitively expensive.

Waller LJ has said there should be no difference in approach to PCOs where environmental issues are raised as opposed to other serious issues. Further, there are no fixed rules on costs no matter how old the practice is, they are at courts discretion.

(i) prohibitive requirement applies to total liability of C, (ii) where EU Directives on this apply court’s discretion may not be enough, (iii) otherwise loser pays remains as Aarhus only source to refer to, (iv) environmental cases shouldn’t have separate principles, Cornerhouse ones for public interest actions should apply.

• Edwards v. EA (2010) – Preliminary reference to ECJ on questions of prohibitively expensive test. Lord Hope (referring) – Q is on the application of Art11, Art9 of Aarhus, in UK law – specifically ‘prohibitively expensive’. Should the test be subjective or objective as to the ordinary member of the public. Sullivan J has said it should definitely not be wholly subjective, whether wholly objective undecided. Balance seems to lie in favour of objective test but answer still uncertain.

• Aarhus Compliance Committee Findings – The Cornerhouse criteria of flexibility for “public interest”, “no private interest” and “exceptional circumstances” are limited in ensuring compliance with Aarhus.

Injunctive relief cases impose harsh measures of cross...