#5267 - Access To Justice Theory - Environmental Law

• Arguments that participation will only result in competition of different views maybe with a compromise at the end. All goals/interests are fixed and remain so throughout.

• Arguments that participation will result in a reasoning process by which all individuals goals are altered so as to reach one optimum decision/agreement.

The question of Standing?

• Sunstein – JR inherently of public concern - judicial review of administrative action began as analogy to private law in requiring a right to have been infringed. In private law, though, issues of standing cause of action and merits of claim are all intertwined as question of whether D breached a duty to C/C had a right infringed. Thus doesn’t require distinct rules of standing.

[Admin law involves questions of legal validity, not individual rights, and this could be isolated in a public interest decision having no bearing on any individual’s rights – this is especially so in the environmental sphere].

• Eleftheriadis – Aarhus via EU breaches autonomy of MSs - MS’s legal systems retain procedural autonomy which is qualified only by ‘equivalence’ and ‘effectiveness’. To have passed proposed Directive implementing Aarhus Art 9 and thus forcing a certain procedure of standing on MSs would have gone beyond these principles – it would have forced in all cases, irrespective of effectiveness or equivalence, the availability of JR when a sufficient interest existed.

• Harlow – why allow public interest action? - justifications for collective/public interest actions: (1) efficiency. But this is flawed as it completely ignores the question of whether the action should come to court at all, whether it is even justiciable. (2) Aspect of globalisation, imported with human rights movement. (3) Arguments of pluralist and participatory democracy which is facilitated by public interest groups – but what has it to do with right to invoke law? – link between right to participate in rule making, right to go to court to protect that right, right to participate in that court’s decision. (???)

• Stone – Should Trees Have Standing? – In the past assigning rights to new things has always been seen as radical and unthinkable at time. Slaves, women, races, corporations etc. But now comfortable with it. Trees, forests, environment can be such a category.

To be holder of legal right thing needs: (1) to institute legal actions at its behest (standing), (2) in determining legal relief court must take injury to it into account, (3) relief must run to benefit of it.

Standing - We should start making arguments that the environment is as a mentally unhealthy person needing guardianship (and defined groups may claim under statutes on their behalf as said guardian etc.). Argued guardian wouldn’t be able to assess needs but I can tell if my lawn needs mowing.

Taking Account of Harm – Maybe base this on idea that everyone’s activities should pay for themselves. Can be seen as grouping together all the other claims of people related to environment (dam built, those with remote claims like bait seller, boat hirer…). But further guardian will claim for enviro itself, monetary values assigned since the protection of law itself in property rights (of the enviro) assigns such values. Cost of cure?

Beneficiary in Own Right – money goes to guardian in trust fund for purpose of environment. Would help us ensure that products only made when social need high enough to account for damage done.

One way trees have been given standing is through liberalization of our standing for damage to the environment (still based on our interest though).

People might ask why we should recognise these rights, what’s in it for us? This is conceptually incoherent, as in answering that question we would be relying on the very anthropocentric justifications we are claiming to be unnecessary to rely on for protecting the environment.

May even be evidence in judicial statements in US of such an approach – referring to the damage done to the environment without relating it to any human element, simply for the fact that it is the environment and it shouldn’t have been damaged.

Is ‘Loser Pays’ too Prohibitive?

• Kirby – Costs are Excessive - The payment of costs by the loser is particularly risky and hard to justify when a private individual initiates proceedings in the name of the public interest against a department of government or a large corporation.

What is the incentive for these private individuals to act where costs are potentially so high, even less chance of them wishing to proceed up legal hierarchy.

Toohey – “what is the point in opening the doors to the courts if litigants cannot afford to come in?”

• Aarhus Compliance Committee Findings and Recommendations – Aarhus Breached by UK Standing - 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 undertakings in damages, this results in such relief not being pursued – this is prohibitively expensive under Art9.

Furthermore the public interest nature of enviro claims is not given enough weight in apportioning costs.

The measures provided in the UK to prevent prohibitive costs are not sufficient to meet Art9. The discretion of the courts leads to considerable uncertainty...