Part 2 – Environmental courts: a better way to resolve disputes
Part one of our two-part blog series outlined the prohibitive costs of judicial review and the reforms needed to bring Scotland into compliance with the Aarhus Convention.
In this second part, Lloyd Austin – ERCS’s Chair, outlines why Scotland should go further, and how establishing an environmental court would be a better way to resolve disputes than using the difficult path of judicial review.
While there remains much to be done to restore nature and address climate change, there is much of Scotland’s environment that remains special – both scientifically and as a source of enjoyment for local communities. It is also widely recognised that this resource underpins much of our economy. However, at times, some development proposals – or, indeed, conservation measures – can be controversial with Government, businesses, communities and/or NGOs taking different positions as the best route to the widely-agreed ideal outcome of sustainable development.
Many decisions by Governments, other public authorities, and businesses affect the environment – but the environment, in itself, has no ‘voice’ of its own. If one of these decisions is disputed, it rests with concerned citizens – communities or NGOs – to speak up on its behalf. Across Europe, the rights of such citizens are recognised in the Aarhus Convention. This convention is international law recognising that the environment has no voice – and that to ensure proper ‘representation’ of environmental concerns, ‘those affected’ (i.e., the public, communities, and representative NGOs) should be accorded certain rights. In our first blog, we examined how Scotland fails to comply fully with the access to justice provisions of the Aarhus convention, and what should be done to remedy this.
Those remedies could achieve reform of our existing legal systems, such as judicial review, so as to address the costs barrier to access to justice. However, there are a number of other barriers to accessing justice. It is therefore necessary to consider the challenges of environmental justice more strategically to ensure that environmental rights are upheld. One solution to this ‘bigger picture’ is the establishment of a specialist environmental court or tribunal (ECT).
Across the world, from New Zealand, via a number of Australian states, Canadian provinces, and US states, to Sweden, the last few decades have seen more widespread introduction of environmental courts. Indeed, it is now estimated that there are nearly 1500 ECTs across the world (up from 350 in 2009, and 1200 in 2016). Although all different in nature, the one common theme underlying these systems is that they provide a specialist and binding forum to resolve environmental disputes – with full rights of access for those concerned to speak up for the environment. It is widely suggested that they are more consistent, speedy, and cheaper than our current mix of adversarial and contentious public inquiries, quasi-judicial Ministerial decision-making and/or judicial review. They can also address, in full, the spirit of the Aarhus Convention.
This ‘explosion’ of ECTs in numerous jurisdictions is evidenced in the introduction to a new report, by ERCS’ in-house solicitor, Dr Ben Christman, entitled ‘Why Scotland needs an environmental court or tribunal‘ The report sets out the case for establishing an environmental court or tribunal (ECT) in Scotland and discusses the four main reasons why an ECT is needed. These are:
- Costs: Environmental litigation is unaffordable. This is in contravention of the Aarhus Convention. An ECT could be designed to ensure litigation is affordable and to improve access to justice.
- Merits: Certain types of environmental litigation do not allow the courts to consider whether the substance of a law has been violated. This is the subject of an outstanding ‘communication’ being considered by the Aarhus Convention Compliance Committee and it is questionable whether this situation is compliant with the Aarhus Convention. An ECT could be given the power to carry out merits review.
- Efficiency and consistency: Environmental litigation is carried out in several different courts and tribunals in Scotland, resulting in a system which is fragmented and inefficient. A single ECT could achieve efficiency benefits by reducing the risk of having multiple legal proceedings arising out of the same environmental dispute by having multiple legal issues heard in the same forum, providing administrative costs savings, and increasing convenience for the parties.
- Expertise: Effectively resolving environmental disputes requires legal and scientific expertise. Judges in Scotland may not be exposed to environmental disputes on a regular enough basis to allow them to develop a specialism in this area. An ECT could appoint technical or scientific members to sit alongside judges – and would allow for judges to develop specialist expertise.
For these reasons, ERCS strongly supports the establishment of an ECT in Scotland – or, at least, a proper detailed analysis of the case and an informed debate. The report examines and discusses the alternatives as well as the counterarguments. Such a debate is important – and it should take place over the next 12 months because the Scottish Government is required to consult on the establishment of an environmental court no later than six months after the new watchdog Environmental Standards Scotland publishes its first strategy. This consultation is likely to take place in late 2022 or early 2023. This will create an important opportunity for reassessing how environmental disputes are dealt with in Scotland.
Of course, this will not be the first such consultation. In 2006, the (then) Scottish Executive published ‘Strengthening and Streamlining: The Way Forward for the Enforcement of Environmental Law in Scotland’, a consultation which purported to fulfil the Labour/Liberal Democrat commitment in their Partnership Agreement that “we will take strong action to reduce environmental crime through (inter alia) strengthening the enforcement of environmental law including consideration of the establishment of environmental courts and other options for improving prosecution and dispute resolution” (emphasis added). Then, in 2016, the Scottish Government published ‘Developments in environmental justice in Scotland: a consultation’, which purported to fulfil the SNP manifesto commitment:
“We have received representations calling for the creation of an Environmental Court in Scotland, potentially building on Scotland’s current Land Court. We are open-minded about this, but wish to seek wider views. We will, therefore, publish an options paper as the basis for a wider engagement on this proposal.” (SNP manifesto, Scottish election 2011, page 39).
While both referred to environmental courts and sought views, neither of these consultations (both published almost immediately prior to an election) provided an in-depth analysis or review of the options to address the four issues raised above. Many, if not most, respondents to both consultations sought a more comprehensive assessment – and many supported a move towards an ECT. In both cases, the new Government after the relevant election decided, contrary to ‘mood’ expressed by respondents, to proceed no further (in the second case, the work and disruption arising from Brexit was also cited as a reason for inaction).
Now, as described above, there will be a third consultation in late 2022 or early 2023. It is important that this is not as shallow and uneventful as the previous two. It must not be another “(Non)-development in environmental justice in Scotland”.
To seek to prevent such an outcome, ERCS’s report aims to kick start the debate and will discuss its contents with all interested stakeholders. With this material, and more that will be produced in the coming year, as the debate proceeds, we hope that evidence will be available to the Scottish Government to ensure that the next consultation is comprehensive – and can lead to an informed decision to establish an ECT in Scotland.