In July 1999 Professor Malcolm Grant of the Department of Land Economy at the University of Cambridge delivered his 500-page report on the feasibility of an Environmental Court for England and Wales. Commissioned by the Department of the Environment, Transport and the Regions, the report has not been published and its contents are unknown except to a select few.
If and when the Grant Report is published, the debate on whether England and Wales needs an Environmental Court, and what kind, will be taken a stage further.
The argument for a
specialist Environment Court
Principle 10 of the Rio Declaration on Environment and Development reads as follows:
“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
Principle 10 and particularly the last sentence has been picked up by the European Commission in implementing Community Environmental Law: Communication to the Council of the European Union and the Parliament, October 1996 paragraph 39.
In his 1991 Garner Lecture, ‘Are the Judiciary Environmentally Myopic?’, Master of the Rolls Lord Woolf set out a broad vision of the need for and the role of such a court, which he believes should have “general responsibility for overseeing and enforcing the safeguards provided for the protection of the environment which is so important to us all”.
Proponents of a specialist court see it as an opportunity to provide a radically different approach to resolving environmental disputes; not relying exclusively on traditional procedures, but adapting its approach to the character of the relevant case. Such a court would be able to make use of specialist assessors, to adopt an inquisitorial approach and to undertake its own research.
The Employment Appeal Tribunal would provide a model, but frequently the issues involved would justify the use of a multi-disciplinary adjudicating panel, with procedures as informal as the nature of the inquiry warranted.
There would be a link with the Planning Inspectorate: “In the case of issues of a lesser dimension, inspectors, who would be part of the tribunal, could provide a similar role to that which they perform at present. There could be, within the structure of the tribunal, a system of appeals that differed in their scope as the circumstances required,” Woolf said.
He insisted that what he had in mind was not just a court under another name. It would be a multi-faceted, multi-skilled body that would combine the services provided by existing courts, tribunals and inspectors in the environmental field. It would be a ‘one-stop shop’. Woolf believed it should lead to faster, cheaper and a more effective resolution of disputes in the environmental area.
Woolf’s vision is a bold one. Environmental disputes are currently dealt with in a range of courts and institutions. Planning remains the preserve of the Planning Inspectorate and, on appeal, the High Court.
Criminal matters can be dealt with in the magistrates’ courts, Crown Courts or on appeal to the High Court or the Court of Appeal.
Civil claims – e.g. toxic tort cases – are heard in the County Court and the High Court with perhaps the Technology and Construction Court being the preferred court for the more serious cases.
The Environment Agency itself has certain adjudicatory functions regarding the granting of licenses. The result is a patchwork of courts and tribunals with varying expertise (in the case of some civil and criminal magistrates’ courts and judges – no expertise or sympathy at all).
The arguments for a specialist court seem to be fivefold:
lIntegration The Environmental Court could adjudicate across the whole range of environmental regulation, and enjoy a jurisdiction that is integrated at two levels: between subject areas (such as planning, discharges to the environment and environmental assessment); and between types of action (such as public law, civil action, enforcement and criminal prosecution).
In the area of enforcement integration is desperately needed. Criminal prosecution remains the primary instrument of enforcement, reinforced by the injunctive power of the civil courts. The Planning Inspectorate lacks jurisdiction to issue binding orders and relatively little use is made of civil remedies or civil penalties.
lInformality The Environmental Court involves a judicial approach to dispute resolution. It implies a body that is independent of government and politically unbiased; which conducts all or part of its business by way of hearings open to the public; and has rules of procedure that are publicly available. A court has the power to make binding awards or decisions. There is no reason why greater use of alternative dispute resolution could not go with such a specialist court.
Speed is essential. Planning inquiries are long drawn-out. Judicial review proceedings may take a year before a decision, which is itself then possibly subject to appeal. Neither the environment nor the economy is assisted by these timescales.
lExpertise The Environmental Court must be composed of specialists in environmental issues and from various disciplines. It must be kept distinct from the normal courts and it is to focus exclusively on environmental suits.
lAccess A specialist court should be able to provide more open access and even to assist in the formulation of complaints. Issues of standing should become irrelevant. Both individual citizens, NGOs, local authorities and Government agencies need ready access and powerful remedies available to them.
lCost A more inquisitorial and specialist approach and more rigorous case management ought to reduce the present prohibitive costs against environmental litigation.
