The Right to your Day in (an Environmental) Court

Published on: Author: Ruth O'Donnell Leave a comment

This blog was written by Rachael Miller, third year Law student at the University of Glasgow, who is enrolled on the Environmental Law course, convened by Dr Jill Robbie.

On Thursday, I was afforded the opportunity to attend the UK Environmental Law Association Scotland Annual Conference held in Edinburgh, thanks to a sponsored place from Westwater Advocates. The theme of the conference was ‘Access to Environmental Justice’. This is a highly topical area of law in Scotland given both the Scottish Government’s recent confirmation that it will not be creating an ‘Environmental Law Court’, despite calls for this from some members of the legal profession, and the announcement that the moratorium on extraction of unconventional oil and gas (‘fracking’) will be continued indefinitely. Throughout the day, I was lucky enough to hear from advocates, solicitors, academics and those working in various related government bodies on their perspectives of this important and growing area of law.

Several of the presentations were of particular interest to me. Firstly, a talk from Dr Ben Christman gave an insight into the struggles faced by some litigants who seek judicial review relating to environmental law issues. He explained that the obligations which the Scottish Government has to ensure access to environmental justice under the Aarhus Convention include, inter alia, that procedures are not ‘prohibitively expensive’. He went on to argue that this standard may not be met in Scotland. Legal aid is not available for judicial review and the framework for protective expenses orders (PEO) requires claimants to incur a great deal of legal costs preparing their case to justify that they deserve a PEO. When a PEO is granted, it is of limited scope and includes a reciprocal cost cap. The compelling take-home point was that it can be untenably expensive for individuals to seek judicial challenge of public authority decisions which have an environmental element. The result is a lack of access to justice for these individuals, which is especially worrying given that the environment has no voice and requires protection by individuals through legal challenge.

A second especially interesting presentation was the ‘case update’ given by Denis Garrity and James Findlay QC, both of Terra Firma Chambers, who ran through several cases which have been heard in Scottish courts in the last year and which have an environmental issue as their focus. What struck me about this discussion was the broad range of actions which have an environmental aspect – in addition to judicial reviews raised by both individuals and NGOs, there were criminal charges, and private law cases relating to delict, contract and property law which all centred around environmental disputes. This really emphasised the extent to which environmental issues permeate all areas of law and all aspects of the everyday life of individuals and communities. The frequency with which cases seem to have arisen in this last year alone underlines that as well as being an interesting area of law for study, environmental law is also highly relevant to many areas of legal practice.

A final point of interest from the conference was the discussion raised by Sir Crispin Agnew QC of Westwater Advocates, an eminent public and environmental law advocate, on the need, in his opinion, for a dedicated environmental law court or tribunal. He gave a thought-provoking talk on the perceived weakness of applying Wednesbury criteria to environmental judicial reviews, specifically criticising the courts’ tendency to defer to the ‘expertise’ of the public authorities. This is despite the very real possibility that the decision-makers involved were not experts in the environmental, scientific or legal implications of their decisions. He also mentioned the fragmented distribution of jurisdiction relating to environmental matters, with different areas being dealt with by the Court of Session, the Sheriff Courts, the Land Court and even the Scottish Ministers. His calls for an environmental court (which he suggested could be put into effect by the creation of a ‘Land and Environmental Court’) are particularly interesting given the recent decision, mentioned above, by the Scottish Government not to create an environmental court, mainly due to the uncertainty surrounding the environmental law framework in the context of Brexit. Given the strength of the arguments put forward by Sir Crispin, and the positive response to the consultation on the possibility of an environmental court, it may be that this is a decision which should be reconsidered in the future.

As I took the train home from Edinburgh after the conference, I glanced out of the window and saw wind turbines, a now familiar sight in the Scottish countryside. I would ordinarily have thought nothing of this but after the discussion throughout the day of the impact of environmental issues, I couldn’t help but think of the conflicts which their construction must have raised: the balancing act for the Scottish Government between its various environmental obligations and targets, and budget restrictions; complaints from the community on many issues from concerns about the impact on land value and grazing farm animals to the effect on the view; and even disagreement from various environmental groups on the benefits of wind farms and the potential harm they may cause to wildlife. If a lack of access to environmental justice means that these different groups do not have the platform to express their interests and concerns before a court comprised of experts in the environmental and scientific elements of the case, then this may create a significant deficit in trust in the legal system as regards environmental issues, not to mention the possibility that potential harms to the environment go unchallenged.

~ Rachael Miller

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