Should Scotland have a specialist court to preside over environmental disputes and crimes? After giving this question about as much consideration as the 17-year-old Jeremy Corbyn gave to a career in investment banking, the Scottish government said no.
This is an old debate in Scotland, with calls for such a court since the early 1990s. At the end of September the government published its response to a 2016 consultation on Developments in Environmental Justice in Scotland. This followed the SNP’s 2011 manifesto commitment to “publish an options paper” on environmental courts.
Options papers usually include options, yet there were none. Instead, the 2016 consultation involved the Scottish government praising its reforms to the justice system, and then more or less asking: Does Scotland really need an environmental court?
Why the need for an environmental court?
Scotland – a country in which 45 sea lochs were reported this year as being “toxic timebombs” due to pesticide contamination from fish farms – is behind the times. In Australia, the Land and Environment Court of New South Wales opened in 1980 as a “one-stop shop” for environmental, planning and land disputes. It was one of the first of its kind around the world.
Two studies by environmental justice academics George and Catherine Pring found there has been a global “explosion” of environmental courts and tribunals since then. By 2009, there were over 350 in 41 different countries. By 2016, there were more than 1,200 in 44 countries. There are 28 environmental courts and tribunals in nine EU member states, with another 20 countries discussing or planning their own environmental courts or tribunals.
In England and Wales, an environmental tribunal was created in 2010. Initially set up with a limited remit to hear appeals against sanctions and fines from environmental regulators, its jurisdiction has expanded to cover other kinds of appeals, such as decisions relating to marine licensing and plastic bag charges.
Environmental laws can combine international, European and domestic obligations – and they are often scientific in nature. There are concerns that judges lack the technical and scientific expertise to handle these cases effectively.
Most Scottish environmental cases use the judicial review process, which is very pricey. Earlier this year, The John Muir Trust had to shell out £125,000 to the Scottish government and energy company SSE after its unsuccessful challenge to the Stronelairg Windfarm. This was negotiated down from an initial £539,000 and did not include the trust’s own legal fees.
When you pass an environmental law … and you do not enforce it, you in effect authorise the conduct you sought to prohibit.
Environmental courts can address these problems. Providing specialist judges and accessible procedures can help citizens to ensure that key laws protecting the environment are upheld. Scotland already has specialist courts and tribunals covering all sorts of topics, such as employment, mental health and immigration matters.
It’s not entirely clear why the Scottish government decided against an environmental court, but three reasons emerge from the 2017 consultation analysis and response: a) everything’s fine; b) there won’t be enough cases; c) Brexit uncertainty. These claims do not stand up to scrutiny.
Rights without any means of enforcement are truly useless. As part of the UK, Scotland is bound by the UN’s Aarhus Convention which requires that people must be able to challenge situations where their environmental rights are denied or environmental laws are broken. Article 9(4) says that these challenges must be “not prohibitively expensive”.
But access to environmental justice is prohibitively expensive in Scotland. This was the conclusion of the convention’s 2014 Meeting of the Parties. The Compliance Committee carried out progress reviews in 2015 and early 2017, and thought the same. The 2017 Meeting of the Parties repeated its 2014 conclusion, criticising Scotland for not yet fulfilling its commitments on environmental justice.
Confusingly, the 2016 consultation told of Scotland’s “ongoing compliance” with the convention. The Scottish government’s 2017 decision tells of measures taken “to ensure Scotland is fully compliant with all aspects of the Aarhus Convention”.
Not enough cases
During the consultation, RSPB Scotland requested information about the number of environmental cases lodged annually, but the Scottish government said it didn’t hold this information. If it doesn’t keep figures, how can it claim with any confidence that there won’t be enough cases?
The caseload depends on several factors. A lack of access to justice will keep it artificially low. It’s difficult to estimate the workload of the court if we don’t know what it will do (linked back to the lack of options in the 2016 consultation paper). Some of those consulted suggested extending the Scottish Land Court, an existing court which already has a sufficient caseload to justify its existence.
The Scottish government rightly pointed out that Brexit will bring uncertainty for environmental governance. We’re told that this is a reason against an environmental court, but not why.
One area of agreement on Brexit is that the warning lights are flashing red for the environment.
EU membership brings a sophisticated framework of environmental governance. The European Commission currently polices key environmental laws, but Brexit will likely terminate its guardianship – and there is no obvious replacement. To fill the gap, the ability of NGOs and the public to enforce environmental laws could be increased. An environmental court could aid this kind of citizen enforcement.
The decision against a Scottish environmental court relies on shaky reasoning.
The Scottish minister for community safety and legal affairs, Annabelle Ewing, is not Hermione Granger; words cannot magic Scotland out of its non-compliance with the Aarhus Convention.
Claiming that there won’t be enough cases is a bit like saying that there will be a shortage of cleaning robots by the year 2452 – we have no idea, and it depends on several factors. The uncertainty surrounding Brexit intensifies the need for change, not inaction.
This was a disappointing consultation. The SNP’s manifesto promise to publish an “options paper” remains unfulfilled – and there is little evidence to support the Scottish government’s claim to be committed to environmental justice.
BEN CHRISTMAN (PhD) – is a Tutor in Public and EU Law at Edinburgh University and is carrying out a research project for the Scottish Environment LINK network which is looking into setting up an environmental rights centre.
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