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In the third article in our four-part series, George Molyneaux considers Brexit’s likely significance for standing and costs in environmental public law cases.

Introduction

As both Ravi Mehta and Emma Dixon have noted, much of the environmental legislation that currently applies in the UK derives directly from EU law.  The Prime Minister has said that the so-called “Great Repeal Bill” will convert the acquis – the accumulated corpus of EU law – into domestic law.  The prospective “bringing home” of the acquis raises questions about the practical features of litigation, of which this post will consider two: who will be able to bring a public law environmental claim and what costs rules might apply?

Standing

The rules on standing govern who can pursue a claim that a public body (including, for current purposes, an EU institution) has acted unlawfully.  Essentially, these rules seek to balance two potentially competing public interests – that public bodies obey the law, but also that they not be excessively troubled by litigation.  Liberal standing rules promote the first of these interests – if lots of people can bring claims, this is likely to enforce public bodies’ compliance with their legal obligations.  By contrast, if only those most personally affected by a decision can challenge it, public bodies are protected from claims brought by officious busybodies, and left free to get on with their work.  The last sentence could, of course, be re-worded – simply replace “officious busybodies” with “public-spirited champions of the rule of law” and “get on with their work” with “persist in their illegality”.

The balance between the two public interests identified above is struck quite differently in English and EU law – the English standing rules are much more liberal than those of the EU courts.  As we shall see, this contrast is likely to be of considerable significance post-Brexit.  (This post does not consider standing in non-English UK jurisdictions, but for the position in Scotland see AXA General Insurance Ltd v HM Advocate [2011] UKSC 46.)

At present, all manner of decisions affecting the environment and applicable in the UK are taken at an EU level.  These include decisions about whether to approve pesticides, what restrictions to place on trade in some animal products, whether to fund certain infrastructure projects, and many more.  Where decisions are taken at an EU level, the focus of any challenge to them is also at an EU level, since national courts cannot declare the acts of EU institutions invalid (Foto-Frost v Hauptzollamt Lübeck-Ost (C-314/85)).  In consequence, a litigant who wishes to challenge the validity of an EU act must either bring a challenge in the Court of Justice of the European Union (“CJEU”) under article 263 of the Treaty on the Functioning of the European Union (“TFEU”), or persuade a national court to refer the matter to the CJEU under article 267 TFEU.

Challenges under article 263 can only be brought by applicants who are addressed in the impugned act (rare), or who can show that the act is either “of direct and individual concern to them” or “a regulatory act which is of direct concern to them and does not entail implementing measures”.  The CJEU has interpreted these requirements restrictively.  In particular, an applicant is unlikely to satisfy the “individual concern” test unless the act affects them in a way that is peculiar to them (Plaumann v Commission (C-25/62)).  This means (for example) that if an EU institution decides to fund an environmentally-damaging infrastructure project, it is unlikely that any particular person living in the region concerned would be able to show “individual concern”.  Nor could such persons gain standing by acting collectively – in Stichting Greenpeace Council  v Commission (C-321/95), Greenpeace was denied standing to challenge a Commission decision to provide funding for the building of power stations, on the basis that persons who would each fail the ”individual concern” test should not be able to circumvent it by claiming through an association.

“Individual concern” is not required for the “regulatory act” limb of article 263, but this too has been interpreted narrowly.  Thus, for example, an act adopted by a “legislative procedure” (as defined in article 289 TFEU) is not “regulatory”.  The leading case is Inuit Tapiriit Kanatami v Parliament and Council (C-583/11), in which applicants concerned in the trade in seal products challenged a Regulation – the claim failed since the Regulation had been adopted by legislative procedure, and the applicants did not satisfy the “direct and individual concern” test.

It is also possible to challenge an EU act by making a claim in a national court, and then seeking a preliminary reference to the CJEU under article 267 TFEU.  This route is, however, often unavailable in practice – if the EU act did not require domestic implementing measures, there may be no basis on which to start a claim in the English courts.

At present, therefore, the EU law standing rules significantly restrict challenges to many environmental decisions which take effect in the UK (and other member states).  Post-Brexit, however, more decisions are likely to be taken domestically, even if in many cases the decision is simply to copy an EU measure.  Insofar as such decisions are taken by Ministers, government agencies and the like, rather than by Parliament, they will (absent ouster clauses) be amenable to judicial review in the English courts.  This is significant, since an application for judicial review can be brought by anyone who has “a sufficient interest in the matter to which the application relates” (section 31 Senior Courts Act 1981).  The courts have interpreted this generously – if a claimant has some real interest in the matter, they are unlikely to be shut out on standing grounds.  Thus, for example, an individual may have standing to challenge a local planning decision, even if it would affect everyone living in the area (e.g. R v Somerset CC ex p. Dixon [1998] Env LR 111).  Further, NGOs are routinely recognised as having standing – one key precedent is the High Court ruling that Greenpeace could challenge a decision on the disposal of radioactive waste (R v HM Inspectorate of Pollution ex p. Greenpeace [1994] Env LR 76).

In short, Brexit will probably lead to more aspects of environmental regulation being determined domestically, and it is easier to gain access to a court to challenge a domestic administrative decision than one taken at an EU level.  As such, one of Brexit’s (doubtless unintended) consequences is that claimants – whether tree-huggers or seal-clubbers – are likely to be able to bring public law challenges on matters which are at present effectively off-limits to them.

Costs and the Aarhus Convention

Both the UK and the EU are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Convention”).  Article 9(4) of the Convention provides that litigation concerning a wide variety of environmental decisions must not be “prohibitively expensive”, a requirement that is echoed in EU law by the Public Participation Directive (2003/35/EC).  Domestically, Part 45 of the Civil Procedure Rules and its associated Practice Direction provide for costs capping in judicial reviews of decisions within the scope of the Convention – a claimant’s costs liability is limited to £10,000, or £5,000 if the claimant is claiming only as an individual (and not as, or on behalf of, a business or other legal person).

In and of itself, Brexit should not affect the Aarhus costs rules in Part 45, given that they were made at a domestic level.  Brexit may, however, make it harder to ensure that the UK complies with its obligations under the Convention.  The UK is bound to comply with article 9(4) as a matter of international law, and will remain so post-Brexit, unless it withdraws from the Convention.  At present, however, and to the extent that article 9(4) is mirrored in EU law, the UK is also bound to comply as a matter of EU law.  This is significant, since the CJEU can coerce the UK in ways that the Aarhus Compliance Committee cannot, notably by imposing fines.  Indeed, much of the impetus for the introduction of the Aarhus costs regime in Part 45 came from the European Commission’s reasoned opinion of 18 March 2010, which argued that the UK had failed properly to implement the Public Participation Directive (a conclusion later confirmed by the CJEU in Commission v UK (C-530/11)).

The Court of Appeal has said that the current Part 45 is still not sufficient to comply with the Convention, since the costs capping regime is confined to applications for judicial review, and does not cover statutory planning reviews (Secretary of State for Communities & Local Government v Venn [2014] EWCA Civ 1539).  The government is currently considering responses to a consultation on possible changes to address this, but the impetus to resolve any further incompatibilities which come to light post-Brexit may be much reduced.  More generally, Brexit may mean that there is no effective way of ensuring that the existing Aarhus costs provisions remain undiluted.

Conclusion

Standing and costs are just two of many areas in which Brexit has potential implications for public law environmental claims.  The juxtaposition of these two issues does, however, emphasise that Brexit is neither straightforwardly good nor straightforwardly bad for those wishing to bring such claims – a switch to domestic standing rules is likely to provide new opportunities, but costs protection may be undermined.

Next week

Isabel Buchanan explores public law environmental claims further, looking at Brexit’s implications for causes of action and remedies in such cases.

Clerks

Staff