Access to Environmental Justice

1
Access to Environmental Justice
2
Freedom of Environmental Information and Rights
to Participation

• Long history of secrecy in the UK
• 1911 Official Secrets Act made disclosure of
  environmental info an offence
• Clean Air Acts 1956 / 68 gave LAs discretion to
  establish registers.
• Rivers (Prevention of Pollution) Act restricted
  access to discharge information
• RCEP 2nd Report public should have access to
  environmental information

3

• RCEP 10th Report should be a presumption in
  favour of disclosure
• 1990 Environmental Protection Act registers for
  waste management
• 1990 EU directive 90/313 Freedom of Access to
  Information on Environment
• 1998 Aarhus Convention (access to environmental
  information public participation and access to
  environmental justice)
• Freedom of Information Act 2000

4

• Environmental Information Regulations 2004
• Environmental reporting
• Eco-labelling
• Judicial review
• Point of law
• Standing
• Delay
• Cost
• Need for an environmental court?
• Lord Woolf
• Lord Carnwath
• Prof Malcolm Grant

5

• RCEP 2nd Report public should have access to
  environmental information
• RCEP 10th Report should be a presumption in
  favour of disclosure
• 1990 Environmental Protection Act registers for
  waste management
• 1990 EU directive 90/313 Freedom of Access to
  Information on Environment
• 1998 Aarhus Convention (access to environmental
  information public participation and access to
  environmental justice)

6
Case Study Attempts to secure environmental
information

• Aberdeen Western Peripheral Route
• March 2005 public consultation
• December 2005 Ministerial selection of
  preferred route
• What was basis for decision?
• Requests from Objectors for Ministerial / Civil
  Service minutes, emails etc

7

• Refusal to release information under s.30 FOI(S)A
• Appeal to Information Commissioner (Kevin Dunion)
• Decision January 2008 ordered release of
  information
• Argued that information fell under Environmental
  Information regulations
• www.itspublicknowledge.info.org.uk

8
Human Rights

• 1950 European Convention on Human Rights
• Human Rights Act 1998
• UK courts to give affect to ECHR
• UK law to be compatible with ECHR
• Different types of right
• Absolute
• Qualified
• Procedural
• Substantive

9

• Relevant articles
• Article 1 of Protocol 1 peaceful enjoyment of
  possessions
• Article 6 right to a fair trial
• Article 8 right to private life, family life
  and home.
• Alconbury case 2001 right to fair trial
• Hatton case 2003 noise at Heathrow
• Dennis case 2003 noise at RAF Wittering

10
European Union Environmental LawHistorical
Development

• 1957 European Economic Community
• Economic expansion not an end in itself (Paris
  summit)
• 1973 first Environmental Action Programme
• 1973-86 legislation on water, waste and air
  pollution
• 1987 SEA protection of environment
  incorporated into Treaty of Rome.

11

• 1989 separate Environmental Directorate-General
  to the EC Commission.
• 1992 5th Environmental Action Programme
• 1993 Maastricht Treaty adds Precautionary
  Principle
• 1997 Amsterdam Treaty incorporates sustainable
  development
• 2002 6th Environmental Action Programme
  2002-2012.

12
EU Institutional Arrangements

• Powers of EU are circumscribed by Treaty of Rome
  (amended)
• Three branches of the EU superstate
• Executive European Commission (27 members)
  (345 votes)
• Legislative European Council / European
  Parliament (785 members)
• Judiciary European Court of Justice (27
  judges)
• Articles 174-176 protection of the environment

13

• Community policy on the environment shall
  contribute to the pursuit of the following
  objectives
• preserving, protecting and improving the quality
  of the environment
• protecting human health.
• Community policy on the environment shall aim
  at a high level of protection..It shall be based
  upon the precautionary principle and upon the
  basis that preventative action shall be taken ,
  that environmental damage should as a priority be
  rectified at source and that the polluter should
  pay

14

• In preparing its policy on the environment the
  Community shall take account of
• the potential benefits and costs of action or
  lack of action
• the economic and social development of the
  Community as a whole and the balanced development
  of its regions
• EU prepares Environmental Action Programmes

15
EU Environmental Laws

• EU directives (and regulations)
• Drafted by the European Commission
• Scrutinised by the Parliament
• Adopted by the Council (QMV)
• Legislation subject to lobbying pressures and
  political bargaining

16

• Wide range of approaches to regulation
• Environmental quality standards
• Process standards
• Product standards
• Product liability
• Prohibitions
• Framework directives
• Daughter directives
• Tensions in the EU
• Central v Subsidiarity
• Harmonization v Flexibility

17

• Drinking Water 80/778/EEC
• Bathing Waters 2006/7/EC
• Shellfish Waters 2006/113/EC
• Water Framework 2000/60/EC
• Ambient Air Quality Assessment 96/62/EC
• Emissions from Industrial Plants 84/360/EEC
• Waste Incineration 2000/76/EC
• Disposal of PCBs 76/403/EEC
• Waste Framework 2006/12/EC
• Landfill 99/31/EC
• Emissions from Vehicles 79/831/EEC
• Content of Petrol and Diesel Fuels 98/70/EC
• Chemicals (REACH) Regulation 1907/2006/EC

18

• End-of-Life Vehicles 2000/53/EC
• Waste Electronic and Electrical Equipment
  2002/96/EC
• Integrated Pollution Prevention Control
  96/61/EC
• Environmental Impact Assessment 85/337/EEC
• Strategic Environmental Assessment 2001/42/EC
• Wild Birds 79/409/EEC
• Habitats 92/43/EEC
• Deliberate Release (GMOs) 2001/18/EC
• Greenhouse Gas Emission Trading Scheme
  2003/87/EC
• Freedom of Access to Information 2003/4/EC
• Environmental Liability 2004/35/EC

19

• Directives addressed to Member States (not to
  individual citizens)
• Individual member states required to transpose
  directives into national law
• EU legislates on end to be achieved / not the
  means
• Usually have two years to introduce legislation.

20
Compliance with EU Environmental Law

• MSs must achieve formal and actual compliance
• European Commission watchdog of constitution
• Individual citizens can report suspected breaches
  (A226)
• Complaints procedure / Infringement proceedings
• Formal Letter / Reasoned Opinion
• MS can plead guilty or go to ECJ
• Penalty payments or Lump Sums (Maastricht)

21

• Commission v France 2005 (French fishing case)
  fine of 20m 300k / day
• R v SoS Environment ex parte Kingston upon Hull
  Council 1996
• R v SoS Trade and Industry ex parte Greenpeace
  (No.2) 2000
• Berkeley v SoS Environment, Transport the
  Regions 2001
• Case study Birds Directive / Habitats directive
  
• Creates Special Protection Areas / Special Areas
  of Conservation (SACs)

22

• Requires promoters to demonstrate that there are
  no alternative sites
• Several major development projects prevented by
  directives
• Dibden Bay, Southampton
• Lingerbay super quarry, Harris
• Barvis Moor windfarm, Lewis