Thursday, 28 May 2009

What is environmental law?

There was another cracking edition of Radio 4's 'Unreliable Evidence' last night. Last week, the issue of the legal framework concerning the right to protest was discussed and included the most-marmite of the Law Lords, Lord Hoffmann. His contribution to the programme essentially consisted in spelling out the courts' approach which is that in order to get your point across "you can break the law a little bit". 

This week, the issue was environmental law. The central question is, can law really have an impact on climate change? The programme's conclusion was that law is a necessary but by no means sufficient solution to this global problem. There were three themes that were discussed and they illuminate the open-texture of this emerging area of law.

1. Domestic Context

In the UK, quite a lot of 'environmental law' is simply the application of ordinary tort law in certain circumstances. Obvious examples are nuisance (public & private) and Rylands v Fletcher-type situations. Here the law targets polluting individuals and seeks the relevant damages for those effected. So, traditionally, what we understand as environmental law has its roots in private law.

The public law aspect is, therefore, a recent development and has been produced by the enactment of the Climate Change Act 2008. By all accounts, this is a novel piece of legislation since it sets a legally binding target on the UK. In the words of the Act itself:

(1) It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.

That's pretty unequivocal stuff and, although it is subject to potential amendment (s.1(2)(1)), politically such amendments are thought to be highly unlikely. 

For us lawyers, the interesting question is - what role for the courts? A typical case might be an application for judicial review of the decision to grant planning permission for a coal-fired power station or a new airport. Typically, the courts are reluctant to get involved in decisions which may have impacts for resource-allocation - this reluctance is constitutional (judges are not accountable like politicians) and institutional (judges often lack the expertise to authoritatively rule on complex or 'polycentric' issues). It is to be hoped that the courts will actually wake-up to the very real issue of climate change and will not attempt to wriggle out of scrutinising the straight-forward statutory duties contained in the Act. At its most revolutionary, the Act could be seen as taking the issue of climate change out of the limp-wristed sphere of politics and affords a special, over-riding status to environmental concerns. 

But, as Stephen Hockman QC rightly pointed out, law must be accompanied by a cultural change to help create a 'virtuous circle'. Law cannot be expected to do all the work. An example of such a circle was the smoking ban which saw both legal and cultural changes have positive effects. Creating a similar circle is something those interested in human rights would like to achieve too - currently human rights law is far more developed than a human rights culture. 
What exactly can be done to push forward cultural change is an issue for another time...

2. International Context

I've never really got international law - as Clive Anderson said, it seems better to say 'international aspirations'. From my point-of-view, international law doesn't actually seem to do a great deal. Finding a violation of some international code is all very well - but what about sanctions and enforcement? (Of course, the exception to this is European Law administered by the ECJ and ECHR, which is generally seen as a paradigm of successful international law).

The Kyoto-protocol introduced a series of measures that were binding if the state ratified it. Famously, the US didn't ratify it - another sorry chapter in America's fixation on wealth rather than well-being. There is another climate conference coming up in Copenhagen - it'll be interesting to see how far Obama is willing to go. 

Anyway, the point is that even with the obligations under Kyoto, there is no international tribunal that can resolve and sanction states that refuse to meet their targets. Stephen Hockman QC said that an International Environmental Court would be a crucial part of giving teeth to this area of law. For my part, it sounds like an eminently sensible idea.

3. Principles

A final area of discussion was what principles should we use to approach the environment in the future? With particular reference to the domestic context, there were two ideas. 

The first was the idea of 'wild law' - this wacky-sounding approach involves giving rights to the sea, trees, fish etc and is apparently part of the Ecuadorian constitution (a bit of legal trivia there). In my head, this seems to lead to a situation where you could have the case of Tree v Dog, with the tree suing the dog for defecating on it over a period of years. Obviously, it's not like that (!) but it does involve balancing the rights of the sea with the rights of a trawler-man to catch lots of fish. I'm a bit unsure about this approach - if environmental concerns are to be given their proper place they should amount to an over-riding principle rather than an ordinary and limitable legal rule. Perhaps from the UK's point of view, the best thing about this approach is that its makes standing wide-open - anyone can bring a case on behalf of a wood or a pond - which is something that seems eminently practical. 

The second approach was to try and extend the 'public trust doctrine'. This is a common law principle that the local authority is under a duty to protect and maintain public and common areas - i.e. playing fields. This idea could be extended to 'the common atmosphere' and so one could take action against a local authority that has not protected a park or other common land from a newly-built incinerator, for instance. 

Ultimately, whatever set of principles are used, the scope for development is wide and the challenge is for the courts to assert themselves in this emerging area of law and already crucial global issue.

- - - 0 - - -

Unreliable Evidence has now gone off-air but there is another great Radio 4 programme called 'The Report' which is on this evening at 8pm. Tonight they are discussing an issue I have been following closely: Freedom of Information and MPs expenses. Also, you can still listen to previous shows on the BNP, the right to protest and other hard-edged topical issues. All very much worth the license-fee (which, weirdly, you don't have to pay for the radio). 


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