The history of ‘public interest environmental law’ – the use of the law to protect the environment – stretches back (at least) to the mid-20th century in the USA.
Its history is much shorter in Scotland. The Supreme Court cracked open the test of standing in judicial review in 2011 in Axa (prompted by Friends of the Earth Scotland’s enterprising lawyers). Until that point, a person needed a private interest in their claim for their case to be heard. Lord Hope’s comments a year later in Walton that, “the quality of the natural environment is of legitimate concern to everyone” – indicated how unsuited that standing test had been for environmental claims. The Supreme Court shifted the test to one of ‘sufficient interest’ (akin to that used in England).
Standing is no longer a problem, however, the late Justice Toohey (a former judge of the Australian High Court) pointed out that opening the doors to the courts is not much use if people can’t afford to go in. Legal services are expensive, the Scottish legal aid rules restrict access to public funding for environmental cases, and environmental litigation in Scotland often comes with a six figure price tag. The John Muir Trust’s unsuccessful challenge to the Stronelairg windfarm development led to a bill of £539,000 to the Scottish Government and developer SSE (albeit negotiated down to £125,000).
The forceful comments of Lord Neuberger (former President of the UK Supreme Court) in a speech earlier this year illustrate how corrosive a lack of access to justice can be:
…Access to legal advice and representation is of course a fundamental ingredient of the rule of law, and the rule of law together with democracy is one of the two principal columns on which a civilised modern society is based. It is simply wrong, and fundamentally wrong at that, if ordinary citizens and businesses are unable to obtain competent legal advice as to their legal rights and obligations, and competent legal representation to enforce and protect those rights and test those obligations in court. Obtaining advice and representation does not merely mean that competent lawyers exist; it also must mean that their advice and representation are sensibly affordable to ordinary people and businesses: access to justice is a practical, not a hypothetical, requirement. And if it does not exist, society will eventually start to fragment. That is not merely a fragmentation in the sense of the gulf between rich and poor, which leads to real frictions and difficulties if it gets too wide. It is a fragmentation which arises when people lose faith in the legal system: they then lose faith in the rule of law, and that really does undermine society…
Access to environmental justice is at present an unaffordable luxury, when it should be a human right. But there are several other ingredients in what amounts to an unpalatable cocktail of environmental governance problems.
The Scottish justice system is ill-suited to handling environmental cases (yet the Scottish Government recently decided against setting up a specialist environmental court). The enforcement of a number of planning and environmental laws in Scotland is problematic.
Looking ahead, Brexit threatens to uproot environmental governance. There is a risk of deregulation and a loss of the accountability infrastructure that comes with EU membership. EU environmental laws which have been transposed into UK law may become ‘zombie legislation’, as they are no longer enforced or updated according to the latest scientific understanding.
To address these problems, Scottish Environment LINK is looking to set up an ‘Environmental Rights Centre’ for Scotland (ERCS). It has funded a six month research project to write a prospectus developing the case and options for the ERCS.
This current ‘vision’ of the ERCS is one which:
• Provides a one stop shop for citizens, communities and NGOs seeking legal advice and representation in matters relating to the environment.
• Educates citizens, communities and NGOs about their environmental rights and responsibilities.
• Campaigns for improved access to justice in environmental matters and full compliance with the Aarhus Convention.
• Identifies and pursues strategic litigation to test and improve environmental law.
It is a positive vision to provide the resources in areas of public education, law reform and legal enforcement to empower people in Scotland to help make their human right to a clean and healthy environment a reality. As the researcher, my job is to refine this vision, develop the arguments for setting up the ERCS and figure out the governance and funding arrangements to get it off the ground.
I have spoken to public interest environmental law and access to justice-focussed organisations across the world to hear about their different experiences. There are many inspirational ones out there – such as ELF in the UK, Environment People Law in Ukraine, FIMA in Chile, the Community Environmental Legal Defense Fund in Pennsylvania and the New South Wales Environmental Defenders Office.
There are different models to choose from – from the classic public-facing law firm which provides legal services to citizens and civil society; to organisations working exclusively on driving strategic change; to those which support communities to analyse and critique the status quo – and create their own laws to pursue more transformative change.
Each model has its merits and limitations – and while some problems are largely universal, fundamentally an organisation’s approach must be focussed on the circumstances and existing needs within its jurisdiction.
The final report and prospectus will be available in the new year on the Scottish Environment LINK’s website. Input is very welcome.
Dr Ben Christman is working on a research project for the Scottish Environment Link which is aimed at setting up a Scottish environmental rights centre – firstname.lastname@example.org
For more background to the research project, see here – https://foe.scot/resource/environmental-rights-centre-scotland-background-context-vision/