Environmental courts: a better way to resolve disputes

09 Feb 2016

We Scots are rightly proud of our outstanding natural environment. It is also widely recognised as an essential part of our economy, as it frames our “brand”. At the same time, economic development proposals – or, indeed, conservation measures – can be controversial. Governments, businesses, and communities of both place and interest often take differing positions as to what is the best route towards achieving truly sustainable development.

Many decisions by Government and its agencies affect the environment – but there is a problem here. The environment has no ‘voice’ of its own in the debate. If there’s a dispute, it rests with concerned citizens -individuals, communities or NGOs – to speak up on the environment’s behalf.  Across Europe, the rights and responsibilities of citizens in this respect are given legal form through the UN’s “Aarhus Convention”. The UK and the EU are signatories to the Convention, making it binding here in Scotland and providing for government “accountability, transparency and responsiveness”.

A key element of the Convention is access to justice and while the Scottish Government say they are in compliance with Aarhus, NGOs disagree and are supported by the Aarhus Compliance Committee in doing so.

The only way the Scottish public can intervene and challenge public decisions is to seek an independent review of a government decision by way of a Judicial or Statutory Review in the Court of Session. This process does not meet, unfortunately, the tests set out in the Aarhus Convention, for several reasons. For example, other than in exceptional circumstances, a Judicial Review cannot consider the ‘merits’ of an argument, only procedural issues. Then, the costs to the pursuants – the community group, individual or NGO – are very high. This makes the process prohibitively expensive for most and, as the respondents – the government, other public bodies and / or developers – are inevitably better resourced and more experienced litigators, the system is heavily weighted in their favour. While some modest reforms have recently reduced inequities, these are partial at best, and leave the fundamental imbalance still in place.

Environmental disputes are resolved differently in other jurisdictions. In a number of countries across the globe such as European states like Sweden, or Chile and New Zealand; in devolved administrations such as US states, Canadian provinces and Australian States; as well as emerging economies such as China, the last few decades have seen widespread introduction of specialist environmental courts.

The common theme underlying these environmental courts is that they all provide a solid binding forum to resolve environmental disputes. Good environmental courts provide full access rights for those concerned to speak up for the environment. There is evidence that such processes are more consistent, speedy and cheaper than our Scottish mix of adversarial public inquiries, quasi-judicial Ministerial decision-making, and Judicial Review. Specialist environmental courts seem to more easily fit the letter and spirit of the Aarhus Convention.

Indeed, the existing Scottish Land Court (with limited environmental responsibilities already), means that such courts are hardly an innovation in Scotland. We could proceed either by expanding the remit and adjusting the procedures of an existing specialist court, or by examining the option of a separate specialist Environmental Tribunal.

Either way, the key tests for an effective environmental court should be that the court gives adequate rights of standing to affected members of communities of place or interest; has the ability to consider the ‘merits’ of a case, as well as procedure, and has access to appropriate expertise; and its procedures are efficient and affordable, creating a level playing field for pursuants and respondents and delivering speedy decisions.

Evidence suggests that this approach would enhance decision-making, and increase consistency, certainty and predictability. As judicial precedent built up, improved understanding of the laws would lead to fewer disputes and ensure that ill-founded appeals are not generated. Indeed, it was for these reasons that the business community welcomed the introduction of an environmental court in Vermont. In Scotland, the concept has already been welcomed by the Faculty of Advocates.

While LINK is convinced that an environment court system will secure better outcomes for the environment,   the aim is not to stifle development or land management. Such a system will also be used to challenge decisions we approve of. Already today, the majority of judicial reviews come from developers rather than so-called ‘third parties’ in the public interest. The outcome LINK seeks is better decisions – both in quality and process – for all.

We hope the Scottish Government will honour its 2011 manifesto commitment to publish an options paper and that it will enable the promised discussion on environmental courts. Following such debate, we hope that all our political parties can commit to legislate for such a court in their manifestos.

Lloyd Austin is the Convener of LINK’s Governance Group and Head of Conservation Policy at RSPB Scotland.

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