To create or not to create? Scotland’s dilemma over establishing a specialist Environmental Court

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

This blog was written by Karnik Aggarwal, who is an exchange student from the University of Sydney, Australia, currently studying at the School of Law.  Karnik is enrolled on the Environmental Law course convened by Dr Jill Robbie.

Introduction

In its response to the Consultation Paper ‘Developments in Environmental Justice in Scotland’, the Scottish Government recently decided to not establish a specialist Environment Court. This was chiefly due to uncertainties on what matters would be handled by this court, along with the fragile situation surrounding Brexit. This blog investigates the merits of establishing such a court, arguing that its implementation would greatly improve access to justice and the development of environmental law, policy, and principles. The Government’s response to the consultation is also analysed. In order to offer a comparison to the Scottish position, particular reference will be made to the structure and operation of the New South Wales Land and Environment Court (NSWLEC) in the Australian state of New South Wales (NSW).

Advantages of a specialist court dealing with Environmental Justice

Access to Justice

As part of a significant reform of its legal system, the Scottish Government introduced measures to ensure matters in Courts were dealt with swiftly and efficiently to promote access to justice. Particularly relevant to environmental law are new powers that make it possible for the Lord President to determine categories of sheriff court cases, and the sheriff principal of a sheriffdom may then designate sheriffs who specialise in those matters.[1] However, respondents to the Consultation Paper noted that these reforms are superficial and only exacerbate the ‘fragmented’ nature of the environmental justice system in Scotland.[2] In particular, Mr Ian Cowan in his submission noted that the Consultation Paper failed to consider the possibility of other models, such as a multi-door courthouse that services both civil, criminal, and administrative review matters under one roof.[3]

The NSWLEC acts as a ‘one stop shop’ for all subcategories of environmental law. Its jurisdiction has been divided into 8 classes encompassing the whole spectrum of matters (from planning and development to environmental offences).[4] In most classes, it offers judicial review, as well as a review on the merits of the original decision by the authority. Alternative Dispute Resolution is also available, which is often faster and cheaper than normal litigation. By eradicating the separate forums for civil and criminal matters, it is administratively easier to transfer a case from one class to another without much difficulty. This is important since most environmental matters do not always fall neatly into a civil/criminal/administrative distinction.[5] Thus, a multi-door courtroom model such as that of the NSWLEC ensures applicants have the fullest opportunity to participate and have access to justice that is administered in a just, quick, and cheap manner. For Scotland, this would also ensure that its legal system is closer in line with the letter and spirit of the Aarhus Convention.

Development of Environment Law

The establishment of an Environment Court presents an unrivalled opportunity to streamline the development of environmental law, policy, and principles. Having an ‘exclusive’ jurisdiction over matters concerning the environment provides a binding forum to resolve environmental issues more consistently and comprehensively, improving substantive and procedural justice.[6] For example, the NSWLEC, through its decisions, has been able to develop a jurisprudence in the area of environmental crime.[7] As a specialist court, it is better able to achieve greater consistency and transparency in prosecuting such offences. Its work has consequently led to the creation of the world’s first sentencing database for environmental offences.[8]

Environmental courts also play a pivotal role in increasing accountability of various institutions towards environmental protection. While publication of decisions can be embarrassing for public authorities, it can also add value to future administrative decision making by extrapolating environmental principles from cases and publicising them. For administrators, this provides a better understanding of how to apply these principles in future decision making, especially where planning and development approvals are involved.[9] Landmark decisions of the Court have the ability to trigger social awareness and promote legislative action, further solidifying the body of environmental law through a public enforcement regime.

Analysis of Scottish Government’s Response

Low caseload volume

The Scottish Government, supporting submissions made by The Law Society of Scotland, argued that it was unnecessary to establish a separate Environmental Court, given the relatively few cases of an environmental nature that are currently handled.[10] However, quite often these cases deal with complex and vaguely defined principles (such as the Precautionary Principle or Sustainable Development), which would benefit from careful treatment by experts forming part of a specialist environmental court. Apart from legally trained judges, the NSWLEC is also comprised of Commissioners who have appropriate knowledge and expertise in various matters including local government administration, town planning, environmental science, engineering, and building construction.[11] A similar system in a Scottish Environment Court could provide clarity on the interpretation and application of fundamental environmental law principles in a practical context. This far outweighs the administrative ‘waste’ arising from a low volume of such cases.

Uncertainties with Brexit

The UK’s referendum to leave the European Union presents challenges peculiar to Scotland and its environmental law framework. In its response to the Consultation Paper, the Scottish Government expressed its desire to remain close to the European Union in all aspects, and maintain close cooperation on issues such as justice, research, and environmental protection.[12] Despite the uncertainties surrounding the negotiation and the scope of Scotland’s devolved powers, the creation of a Land and Environment Court in Scotland should be perceived as an opportunity to interpret and apply environmental law consistently with EU Law, acting as a replacement to the European Court of Justice. However, a dedicated Environmental Court will still have to abide by the laws passed by Westminster, which is likely to acquire greater legislative control on the environment post-Brexit. Thus, the risk of diluting strong environmental policy will remain, especially since 80% of all environmental legislation in Scotland originated at EU level.[13]

Conclusion

From the above analysis, it is evident that the Government’s decision to not implement a dedicated Environmental Court is a reactionary one. As demonstrated by the experience of the NSWLEC in Australia, there is real scope for improvements to access to justice in environmental matters. The opportunity for further development of environmental law and justice in Scotland should not be missed, especially in the legal landscape after Brexit.

Notes

[1] Courts Reform (Scotland) Act, ss34-35.

[2] Scottish Government, ‘Developments in Environmental Justice in Scotland: Consultation Analysis and Scottish Government Response’ (2017), 16 [43]-[44].

[3] Ian Cowan, Response #13864173, <https://consult.gov.scot/courts-judicial-appointments-policy-unit/environmental-justice/consultation/view_respondent?uuId=138634173>.

[4] Land and Environment Court NSW, ‘Annual Review 2016’, 7.

[5] Scottish Government, ‘Developments in Environmental Justice in Scotland: Consultation Analysis and Scottish Government Response’ (2017), 11 [22].

[6] Hon. Chief Justice Brian Preston, ‘Operating an environment court: the experience of the Land and Environment Court of New South Wales’ (2008) 25 Environmental and Planning Law Journal 385, 407-408.

[7] Ibid., 389.

[8] Ibid.

[9] Ibid., 409.

[10] Scottish Government, ‘Consultation Analysis and Scottish Government Response’, 26.

[11] Brian Preston, ‘Operating an environment court: the experience of the Land and Environment Court of New South Wales’ (2008) 25 Environmental and Planning Law Journal 385, 388.

[12] Scottish Government, ‘Consultation Analysis and Scottish Government Response’, 26-27.

[13] Ibid.

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