A report published today by the Environmental Rights Centre for Scotland (ERCS) calls for the creation of a new one-stop-shop Environmental Court for Scotland. The ERCS report, ‘Why Scotland needs an environmental court or tribunal’ finds that a low-cost environmental court for Scotland would improve accessibility, reduce costs and plug Scotland’s accountability gap over the environment.
Earlier this year Scotland’s legal system was found to be breaking international human rights and environmental law, due to the prohibitive costs of legal action. In July, a UN body found that there was a lack of progress in Scotland in meeting the requirements of the Aarhus Convention, which guarantees everyone in Scotland the right to go to court to defend the environment. The Aarhus Convention Compliance Committee called for reform ‘as a matter of urgency’. Scotland’s legal system has been found in breach of the Convention on several occasions since 2014. This is because of the high cost of taking legal action, with judicial reviews often running into the tens or hundreds of thousands of pounds.
Report author and ERCS solicitor Dr Ben Christman said:
‘Everyone in Scotland has the right to live in a healthy environment. As the law stands it is near impossible for ordinary people to use the legal system to stand up for the environment. It is eye-wateringly expensive and intimidating to go to court to challenge harmful environmental developments or policies. A low-cost, accessible environmental court or tribunal is urgently needed to ensure accountability over the environment.’
Ann Coleman is a resident of Greengairs and has been a local campaigner for environmental justice since the late 1990s. She said:
‘I’ve been dealing with environmental injustice in Greengairs for 24 years. We’ve been living with the largest capacity landfill site in Europe on our doorstep, along with open cast coal mining and now a planned new incinerator. The environment is never considered relevant to our health. We have no voice. We have no rights. We cannot protect ourselves.
‘An environmental court is essential to give us the right of access to justice. It needs to be affordable, and easy for the public to approach. At the moment the system is so geared up against us that it is impossible to get justice. ’
‘An environmental court or tribunal would be a comprehensive way of bringing Scotland’s legal system into compliance with its obligations on environmental and human rights law. There has been a recent explosion in environmental courts, with nearly 1500 worldwide. The Scottish Government will consult about an environmental court before Spring 2023 and it should look to establish the kind of court of tribunal which will deliver the best outcome for people and the environment.’
NOTES TO EDITORS
 The report is available at: https://www.ercs.scot/wp/wp-content/uploads/2021/12/Why-Scotland-needs-an-ECT-Oct-2021.pdf
It recommends that a new Scottish environmental court or tribunal should:
· have an institutional purpose to promote access to justice, democracy, the rule of law and the human right to a healthy environment;
· be able to appoint both legal and expert members with scientific and technical expertise;
· have a comprehensive environmental jurisdiction;
· have powers to set its own rules and procedures;
· be a court of first instance, with appeals either referred internally (in which case it would be established as a Court) or to the Upper Tribunal for Scotland (in which case it would be established as a Tribunal).
 The UNECE Aarhus Convention guarantees the right to go to court to challenge decisions, acts and omissions that break environmental law. Article 9 of the Convention requires that access to the courts is fair, equitable, timely and not prohibitively expensive. The United Kingdom ratified the UNECE Aarhus Convention in 2005. Scotland is obliged to ensure that its legal system is compliant with the Convention. In August, the UNECE Aarhus Convention Compliance Committee found on-going deficiencies in Scotland’s legal system and called for reform as a matter of urgency: https://www.ercs.scot/news/scottish-legal-system-failing-environment-due-to-high-costs/
 Scotland’s Programme for Government commits: ‘We will also ensure a review of environmental justice, and the case for an environmental court, is undertaken during this parliamentary session – commencing by spring 2023.’ https://www.gov.scot/binaries/content/documents/govscot/publications/strategy-plan/2021/09/fairer-greener-scotland-programme-government-2021-22/documents/fairer-greener-scotland-programme-government-2021-22/fairer-greener-scotland-programme-government-2021-22/govscot%3Adocument/fairer-greener-scotland-programme-government-2021-22.pdf
 In March 2021, the Scottish Government’s National Taskforce for Human Rights Leadership recommended a new Human Rights (Scotland) Act, which should include a human right to a healthy environment and full compliance with the Aarhus Convention. See https://www.ercs.scot/news/plans-for-human-right-to-a-healthy-environment-in-scots-law-welcomed/. The Scottish Government has confirmed it will implement the report’s recommendations.
 The Environmental Rights Centre for Scotland (ERCS) exists to assist members of the public and civil society to understand and exercise their rights in environmental law and to protect the environment: www.ercs.scot.