#17720 - Public Participation Environmental Information And Access To Justice Notes - Environmental Law

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 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?

General

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.

        • 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.”

        • 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:

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