Law students at Cardiff University’s Environmental Law Foundation Clinic concerned over the impact of Brexit on community groups seeking to protect the Welsh environment

By Cardiff University’s Environmental Law Foundation Clinic

Law students at Cardiff University’s Environmental Law Foundation Clinic concerned over the impact of Brexit on community groups seeking to protect the Welsh environment

Students at the Cardiff University Environmental Law Foundation Clinic[1]have been assisting Tim Deere-Jones, a marine radiological expert, who has been concerned over the decision to dump sediments, dredged from areas near the Hinckley Point nuclear power station, off Cardiff Bay.

The dumping issue has been extremely controversial with both judicial review proceedings, taken in the name of Cian Ciaran of the Super Furry Animals, and a Petition and detailed debate conducted in the National Assembly for Wales.

Edward Johnston, second year undergraduate student, said

“Whatever the final outcome of the Cardiff Bay dumping case, it is a clear example of why it is so very important to have cheap and accessible methods for concerned Welsh community and conservation groups to raise concerns and challenge decisions, such as this one, to allow dumping of potentially contaminated sediments.

While developers and decision-makers, like EDF and UK authorities, have huge resources to deploy in making their arguments for, for example, the dumping taking place in Cardiff Bay, small community groups and NGOs often struggle to  have their voices heard and their concerns addressed openly and independently”

While a judicial review challenge to UK Courts can ensure that decisions, such as that to dump at Cardiff Bay, are procedurally correct, judicial review is expensive and cannot examine the detailed merits of such a decision.

Mr Deere-Jones is concerned over the merits of what has been done here, particularly that the depth of sampling of the sediments off Hinckley Point did not accurately assess the likely release of radioactive substances when the sediment was later dumped at Cardiff Bay and dispersed along the Welsh Coast.

Prior to Brexit, such ‘merits’ complaints can still be referred by individuals and environmental non-governmental organisations to the European Commission[i]and the Clinic will look to assist Mr Deere-Jones to do that.

The concern is that, post-29thMarch 2019, this cheap and accessible complaints procedure to the European Commission will no longer be available to Welsh citizens.

While the draft Withdrawal Agreement appears to suggest that the complaints procedure should remain available during any “transition period”, this is not completely clear from the Agreement itself.

The students are also concerned that should the UK find itself in the “backstop”, no such complaints procedure will be available to Welsh citizens, possibly indefinitely.

Should a more permanent free-trade arrangement be made between the UK and the European Union, similarly the students are concerned that no merits-based complaint mechanism will be available that is cheap and easily accessible by UK and Welsh citizens.

Guy Linley Adams of the ELF Clinic said

“Although the draft Withdrawal Agreement says that the UK must ensure that both administrative and judicial proceedings are available in order to allow action by members of the public, it is not clear as to whether merits-based complaints, as are current available, will still be available once the UK exits the European Union and leaves the transition period”.

Importantly, as this is largely a devolved matter, it will fall to the Welsh Government to ensure that such a merits-based complaints procedure exists in Wales and the students are clear that the lead taken by Wales in recent legislation such as Environment (Wales) Act 2016 and the Well-being of Future Generations (Wales) Act 2015 supports the establishment of such a system in Wales post-Brexit”.

Bryana Daniels of the Clinic said:

Wales has an opportunity here to show yet again that it is a world-leader in passing law seeking to protect the environment and the well-being of its citizens”.

[1]The Clinic was set up in 2016. It is a partnership between the Cardiff Law School and the London-based, UK-wide charity the Environmental Law Foundation. The Cardiff Clinic is run by Professor Ben Pontin, an academic environmental lawyer at Cardiff Law School. Ben is assisted by Guy Linley Adams, a practising environmental lawyer. Guy and Ben oversee the work of 12 student members. The Clinic handles all queries relating to environmental issues in Wales. For more information, see www.elf.org.uk.

[i]The European Commission’s complaints procedure – see https://ec.europa.eu/assets/sg/report-a-breach/complaints_en/ – has been used on very many occasions by environmental and wildlife conservation groups across the UK to very great effect, with the Commission able to look at both the legality in procedural terms and also at the merits of decisions made. If the European Commission takes up an investigation, it will examine the issue with the Member State concerned and ultimately, this can lead, and has led on many occasions, to proceedings in the European Court of Justice against a Member State for failing to meet obligations under environmental Directives.  The UK has faced numerous ECJ cases brought by the Commission after complaints from environmental groups.