This chapter considers the ability of individuals to seek redress to resolve environmental disputes and the role played by the courts. First, the chapter considers the reasons why some disputes end up in the courts before focusing on the main institution of judicial redress in the form of judicial review. Focus includes discussion of likelihood of success before the courts and the usefulness of judicial review in environmental cases. Specifically, the chapter focuses on the problem encountered by litigants in respect to the exorbitant costs associated with judicial review and the attempt by the Government to address this. The chapter also briefly considers the provisions for access to justice in private law as well as before the Court of Justice for the EU before considering alternative mechanisms for compliance, including the debates surrounding the need for a special environmental court.
Chapter
10. Access to environmental justice and the role of the courts
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
Chapter
10. Access to environmental justice and the role of the courts
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter focuses on the scope of the public to challenge environmental decisions before the courts. A central focus is judicial review and the occasional reluctance of the UK courts to intervene in environmental law matters, deferring instead to administrative decision-makers. Central to this is also the rules of standing, the complex regime for costs protection (which is largely derived from the Aarhus Convention), and the general rules of public law. The chapter finishes with a discussion of alternative, non-judicial compliance bodies, including the Information Commissioner.
Chapter
Additional chapters on the Online Resource Centre
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
Three chapters of the book are not contained in the print version but can be found on the Online Resource Centre which accompanies the book, at www.oxfordtextbooks.co.uk/orc/bell9e/. The following short summaries indicate the scope of these chapters.
This chapter looks at the legal protection and management of various features of the UK countryside—that is, its landscape, trees, forests, and hedgerows. This involves applying some controls considered earlier in the book, such as town and country planning law, but it also includes legal designations of areas of landscape value and the use of a range of tools including economic instruments, especially grants and subsidies to landowners....
Chapter
16. Air Pollution
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter examines the many legal and regulatory challenges arising from the problem of air pollution. As shown in the chapter, air pollution has been a regulatory problem for centuries and remains a significant threat to human health. The focus of the chapter is on the main sources of air pollution, internationally and domestically, and the regulatory responses which are largely anchored in EU rules. Finally, the chapter analyses the air quality targets brought in by the Environment Act 2021.
Chapter
17. Air Quality Law
This chapter examines legal regimes relating to air quality, considering developments at the international, EU, UK and local levels. International and EU law is particularly important in this regulatory sphere since air pollution is a transboundary issue. There is also increasing public concern about air quality, which is reflected in high profile public interest litigation being brought against the UK government to ensure lawful levels of air quality are being met, or at least properly planned for. There are also implementation and coordination problems that make compliance with air quality law a considerable challenge. Regulating air quality ultimately requires coordinating the actions and efforts of actors in many industries, sectors, and geographical areas. At present, not all of those actors are within the scope of UK air quality law.
Chapter
20. Biodiversity protection
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter examines the many different regimes in international, EU, and domestic UK law that aim to protect plants, animals, and increasingly the ecosystems of which they are a part. Initially, the chapter explores the reasons why we might want to protect wild animals and plants and the main types of legal controls used to do so. A central focus is on the question of who bears the cost of conservation and how the decision to protect a particular area or species is made and subsequently challenged, e.g., before the courts. The chapter also briefly outlines the historical context behind today’s rules.
Chapter
15. Climate change
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter discusses the international, European, and domestic initiatives adopted in response to climate change. The focus is on the development of the international legal regime found in the United Nations Framework Convention and other areas of international law, including human rights law, as well as EU law. The chapter also explores the domestic responses found in the Climate Change Act 2008 with its focus on long-term targets and the legal significance of these.
Chapter
18. Climate Change Law
This chapter examines the fast-moving area of law relating to climate change. This includes a considerable body of public international law, from the UN Framework Convention on Climate Change to the legally innovative Paris Agreement 2015. The chapter also considers legal developments at the EU and UK levels, which both contain a rich body of climate law and policy. The EU and the UK are both seen as ‘world leaders’ in climate law and policy. In EU law, this is due to the EU greenhouse gas emissions trading scheme and the EU’s leadership in advocating ambitious greenhouse gas mitigation targets and in implementing these targets flexibly across the EU Member States through a range of regulatory mechanisms. The UK introduced path-breaking climate legislation in the Climate Change Act 2008, which provided an inspiring model of climate governance, legally entrenching long-term planning for both mitigation and adaptation. The chapter concludes with an exploration of climate litigation, a new and growing field of inquiry.
Chapter
15. Climate change, ozone depletion, and air quality
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter deals with legal controls to address global climate change, ozone depletion, and air quality, the complexity of which problems means that many different types of approaches are necessary across a wide range of activities. This can be a little daunting at first because many issues overlap. In each of these areas, there are laws at international, European, and national levels that need to be considered. It makes sense, however, to first consider some general issues and also the international response to various forms of air and atmospheric pollution. The range of problems affecting the atmosphere stretches across the full range of human activities, from highly toxic fumes emitted from a complicated industrial process, to such seemingly mundane activities as lighting a fire, driving a car, or using spray-on deodorant. Air pollutants come in many forms, and the main ones will be discussed in the chapter.
Chapter
19. The conservation of nature
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter looks at the laws that aim specifically to protect plants, animals, the natural habitats—and, increasingly, the ecosystems—of which they are a part. This is an important part of environmental law, not least because of the appalling rate of decline in, and loss of, the natural environment, but also due to the obvious public interest in conserving biodiversity. Using the law to conserve nature, however, involves finding solutions to some complex policy issues. Finding space for species and habitats to be conserved often clashes with other legitimate social interests, such as economic development and respect for private property. These tensions—which mean that nature conservation law can be a controversial policy area—are a central theme of the chapter.
Chapter
16. Contaminated land
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter considers the set of laws introduced to address the patchy nature of pre-existing regimes. Although its focus is relatively narrow—that is, on the regulation of the clean-up of historically contaminated land—it is always important to bear in mind that the basic building blocks of statutory liability for cleaning up pollution can often be found in subject-specific legislation. The focus on the clean-up of contamination caused by historical sources presents a number of significant challenges, such as when should clean-up be required, to what level, and for what purposes. The most significant of all of these issues, however, is the identification of the party, or parties, responsible for paying the consequences of historic pollution.
Chapter
17. Contaminated land
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter focuses on the regime for regulating contaminated land in England and Wales with a focus on historical pollution. The chapter discusses key definitions such as ‘contamination’, who has responsibility for cleaning up contamination, and considers whether it is at all justified to impose responsibility retroactively for pollution which may have occurred lawfully many years ago.
Chapter
7. Courts
Courts play an important role in environmental law. Among other things, they uphold the rule of law and adjudicate on the legal disputes that inevitably arise. This chapter explores the role of courts in environmental law. It outlines why courts are understood to be important in environmental law, what courts are, the different types of courts relevant to UK and EU environmental law, the importance of access to justice, and the actual and potential role of specialist environmental courts. Overall, what is apparent from this chapter is not only that the role of courts is an important one, but that it is also complex.
Chapter
5. Criminal Liability
This chapter introduces criminal liability for non-compliance with English environmental law. Environmental crime can be defined as behaviour that contravenes statutory provisions for the protection of the ecological and physical environment, where there is some kind of punitive sanction imposed for the contravention, with such provisions sometimes also pursuing the protection of public health. Environmental crime can also include criminal offences created through the common law, such as public nuisance. The purpose of this chapter is to discuss overarching themes, such as key elements of strict liability offences, in criminalizing behaviour that damages the environment, rather than details of specific offences spelt out in particular statutes. The argument here is that environmental crime sits uneasily within the environmental law regulatory landscape, which has been shaped in the UK in recent years by co-operative, ‘better regulation’ agendas that seek to reduce burdens on business.
Chapter
20. Environmental Assessment
Environmental impact assessment (EIA) and other related forms of assessment require decision-makers to take into account the environmental implications of an activity before making a decision about those acitvities. EIA is a feature of most environmental law systems of the world. This chapter is an overview of the Environmental impact assessment (EIA) and strategic environmental assessment (SEA) legal regimes in the EU and how they have been implemented into English law. It provides an overview of the distinctive legal nature of both EIA and SEA, the main legal features of each directive, and how they have been implemented into national law. A significant feature of this chapter is that it provides an overview of the case law of the CJEU and UK courts concerninig these regimes.
Chapter
13. Environmental assessment
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter looks at the international, European, and national laws relating to environmental assessment, and the explosion of litigation that has occurred over the years. Environmental assessment has emerged as one of the key environmental law mechanisms. Its essence is that information about likely environmental impacts of things such as development projects, and now also plans and programmes, is properly considered before potentially harmful decisions are made. It can be useful to think about environmental assessment in the context of some wider issues of environmental decision-making. Another basic issue addressed here is one that frequently crops up in environmental assessment law; namely, the tension between adhering strictly to procedural rules and adopting a pragmatic approach to decisions that are considered sensible.
Chapter
13. Environmental assessment
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter interrogates the key regulatory tool of environmental assessment. A central focus is on fundamental questions such as what environmental assessment is, what it covers and how it works, when a project or plan is subject to assessment, and its use in practice. The chapter discusses the key legal instruments, which derive from EU law, and the highly procedural nature of the assessment process.
Chapter
8. Environmental crime and enforcement
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter is concerned with environmental crime and the enforcement of environmental law. It starts with some consideration of the difficult definition of ‘environmental crime’, including the distinction between moral and legal meanings of the term. Some of the basic framework of environmental crime, which helps to explain several of the approaches to the enforcement of environmental regulation, is then considered. For example, the fact that many environmental crimes are strict liability offences explains why the rate of successful prosecutions is high, but may also provide an explanation as to why some consider the sanctions that are imposed by the courts to be too low. A large part of the chapter is dedicated to a discussion of the enforcement practices adopted by regulatory agencies in England and Wales, including discussion of the use of civil sanctions instead of prosecutions and the recently enacted sentencing guidelines for environmental offences.
Chapter
8. Environmental crime and enforcement
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter explores what happens when environmental laws are not complied with. This is done through an examination of key terms such as environmental crime, the role of criminal law, and the increasingly popular use of civil enforcement tools. The chapter also discusses the effectiveness of enforcement.
Book
Elizabeth Fisher, Bettina Lange, and Eloise Scotford
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. Environmental Law: Text, Cases & Materials provides students with a deep understanding of environmental law while also encouraging critical reflection of legal reasoning and pointing out areas of controversy and debate. The authors present a wide range of extracts from UK, EU, and international cases, legislation, and articles to help support learning and demonstrate both how the law works in practice and how it should or could work, clearly guiding students through key areas while providing insightful explanations and analysis. Topics have been carefully selected to support a wide range of environmental law courses, within law school and beyond. These include pollution control, nature conservation, climate change regulation, town planning, and water regulation, all incorporating aspects of law from local, UK, EU and international legal cultures. With its unique combination of extracts and author discussion, this new edition provides a wide-ranging, stimulating, and fresh approach to environmental law, which can be relied upon throughout your course and career. This book is also accompanied by an Online Resource Centre that features updates to the law, further reading suggestions, and useful weblinks.
