Environment
The inaugural lecture by Joanne Scott, Professor of Environmental Law at University College London, delivered last month, explains why this is so. In a brilliant exposition, Professor Scott points out that the EU can be viewed as a federal institution—in this respect comparable with the US—in which there can accordingly be at least two levels of regulation, one having the character of a framework, and the other, subject to a wide margin of appreciation, being concerned with more detailed implementation of that framework. This regulatory structure has an inherent flexibility which is much more likely to be democratically acceptable that a monolithic structure.
At the same time, environmental rights at a European level are being strengthened. Under the Treaty of Lisbon, Art 6 of the EU Treaty is amended to provide that the Charter of Fundamental Rights of the EU of 7 December 2000 is to have “the same legal value as” the EU Treaty.
LEGAL RIGHTS
By Art 37 of the Charter “a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the and ensured in accordance with the principle of sustainable development”. The implications of this amendment to the EU Treaty are discussed at length in the report on the Lisbon Treaty by the European Union Committee of the House of Lords, published on the 13 March 2008 (The Treaty of Lisbon: An Impact Assessment).
The committee comes to no certain conclusions, save to point out that British courts, which already refer to the Charter in identifying the scope of fundamental rights, are likely to continue to do so. A judgment in the
Administrative Court (see R v Council 2003 EWHC 167 (Admin), [2003] All ER (D) 233 (Feb)) by Mr Justice Munby is quoted:
“The Charter…can in my judgment properly be consulted in so far as it proclaims…the content of those human rights that are generally recognised throughout the European family of nations…”
The cognoscenti will recall that in EC Environmental Law (6th edition) LudwigKramer points out (at p 148) that in two cases brought by the Commission against Germany in 1991 (1991 ECR 1-2567, 2607) the European Court of Justice (ECJ) had already declared that since air quality standards were adopted in the interests of protecting human health, a citizen must be entitled to ensure in court that air quality standards are actually complied with. As Dr Kramer points out:
“This interpretation comes close to giving individuals who are affected by polluted air a right to clean air. Unfortunately though, environmental organisations and individual citizens hardly ever tested the potential and limits of this jurisprudence in other cases. Thus the judgments of 1991 are practically being ignored by the administrations.”
There are some interesting current developments relating to the application of European law at a domestic level. The requirement flowing from the Habitats Directive (92/43/EEC) that a development proposal likely to have a significant effect on areas which are the subject of special habitats protection must be subject to “appropriate assessment” for their implications (a requirement transposed into domestic law by the Conservation (Natural Habitats etc) Regulations 1994 (SI 1994/2716)) is to be the subject of scrutiny in April 2008 by the Administrative Court in a case in which the secretary of state for communities and government ruled that planning permission for a housing development could properly be granted without an appropriate assessment.
Likewise the Administrative Court will shortly revisit its decision in R (on the application of Thames Water Utilities Limited) v Bromley Magistrates Court [2005] EWHC 1231 (Admin), [2005] All ER (D) 265 (May) following the ruling of the ECJ that sewage escaping from a sewage network maintained by a statutory sewerage undertaker does amount to directive waste under the Waste Framework Directive (75/442/EEC). Thames Water is therefore potentially exposed to criminal sanctions at the behest of the Environment Agency.
PUBLIC LAW FRAMEWORK
In a series of cases the courts are developing thepublic law framework relating to environmental law. In:
R (on the application of National Grid Transco plc) v Environment Agency 2007 UKHL 30, [2007] 3 All ER 877 the House of Lords held that the successor to a public body succeeding to the extant statutory liabilities of its predecessor did not inherit liabilities under a statutory regime not in force at the date of transfer; and in
R (on the application of Wilson) v Wychavon District Council [2007] EWCA Civ 52, [2007] All ER (D) 79 (Feb) the Court of Appeal held that although the enforcement provisions in s 183(4) of the Town and Country Planning Act 1990 did indirectly discriminate against gypsies, such discrimination could be objectively justified by the legitimate aim of protecting the environment and was not therefore incompatible with Art 14 of the European Convention on Human Rights.
GOING NUCLEAR
Finally, and turning to matters of process and transparency, the Administrative Court, as is well known, in February 2007 declared unlawful the government’s original decision that nuclear new build has a role to play in relation to the future energy needs of the country (see R (on the application of Greenpeace Limited) v Secretary of State for Trade and Indus-try 2007 EWHC 301 (Admin), [2007] All ER (D) 192 (Feb)). Recent remarks by ministers (not least in the context of the state visit by the President of France) suggest that another potentially controversial decision on this topic may have been arrived at.
