Castle Debate Climate Change Litigation 03 012 18 Richard Wald Barrister 39 Essex Chambers
Topics 9 Examples of climate change litigation in the UK How to access the courts in such cases? Is litigation a good tool for combatting climate change?
Climate Change Cases in the UK 1. Heathrow Airport Ltd v Garman & Ors. [2007] EWHC 1957 2. R(Littlewood) v Bassetlaw DC [2008] EWHC 1812 3. The Kingsnorth Six Trial Maidstone Crown Court 4. R(People & Planet) v HM Treasury [2009] EWHC 3020 Sales J 5. Barbone & Ross v SSfT [2009] EWHC 463 Sir Thayne Forbes 6. Grainger Plc & Ors. V Nicholson [2010] ICR 360 7. R(Hillingdon & Ors.) v SSfT [2010] EWHC 626 Carnwath LJ 8. R(Griffin ) v Newham LBC [2011] EWHC 53 9. R v Dosanjh [2013] EWCA Crim 2366
1. Heathrow Airport Ltd v Garman & Ors. [2007] EWHC 1957 Swift J grants injunction to prevent protests at LHR as they would seriously damage airport operations and raise terrorist risk Climate change demonstration planned over 8 days Application made under s1 of Protection from Harassment Act 1997 Harassment not limited to fear of violence and is fact-specific Therefore 3 individuals and Plain Stupid injuncted
2. R(Littlewood) v Bassetlaw DC [2008] EWHC 1812 Sir Michael Harrison dismissed the Claimant resident s application for judicial review of the Defendant Local Planning Authority s grant of planning permission for a precast concrete manufacturing facility on a former factory site near the Claimant s home. The various grounds raised included an allegation of a failure to consider the adverse impacts of the proposed facility on climate change and in particular from CO2 emissions. Sir Michael Harrison held (inter alia) that climate change had not been considered in the environmental statement but that this did not render it so deficient that it was legally flawed. Furthermore the issue had not previously been raised with the local authority by anyone.
3. The Kingsnorth Six Trial Maidstone Crown Court [2008] The Crown Court acquitted climate change activists of causing criminal damage at a coal-fired power station at Kingsnorth. Six Greenpeace activists attempted to shut down the Kingsnorth coal-fired power station in Kent by scaling the chimney and painting the Prime Minister s name down the side. The defendants argued that by shutting down the coal plant for a day, they prevented greater damage to even more valuable property. The jury s verdict was the first instance in which prevention of property damage resulting from the impacts of climate change was used as a lawful excuse in court. cf use of Jury s Equity at Liverpool Crown Court in 1996 re 1.5 damage by the Ploughshare Four to a Hawk warplane at BAe plant at Warton, near Preston for despatch to Indonesian Airforce for use in East Timor
4. R(People & Planet) v HM Treasury [2009] EWHC 3020 The Claimant group applied for JR of HM Treasury s policy for handling its investment with RBS (70% HMG owned) Treasury adopted a commercial approach to its relationship in order to comply with s172 Companies Act 2006 to manage the company in the interests of all shareholders. P&P alleged that PBS had used public money to finance companies/projects which undermined UK s climate change commitments And sought an approach which encouraged regard to climate change and human rights but HM T considered that these were better promoted by industry-wide direct regulation and incentives. Sales J refused the application. Shareholder activism re Corporate Social Responsibility suggested as an alternative.
5. Barbone & Ross v SSfT [2009] EWHC 463 Applicants applied to quash SSfT decision to allow an appeal by BBA Ltd & Stansted Airport Ltd against a refusal to permit airport expansion (25 mppa to 35 mppa and ATM to 264k pa) Grounds included an allegation that the SoS had failed to take account of the project s effects on greenhouse gas emissions Sir Thayne Forbes held (inter alia) that the SSfT had considered the impacts of the proposal on climate change and in any event government policy was beyond the scope of proper challenge (Bushell)
6. Grainger Plc & Ors. v Nicholson [2010] ICR 360 Appellant employer (G) appealed against a decision of an EAT that the respondent employee (N) was entitled to pursue a claim under the Employment Equality (Religion or Belief) Regulations 2003 N, made redundant by G, claimed the dismissal was unfair because discriminatory due to his belief about climate change which, according to the EAT, was akin to a philosophical belief. Burton J held that a belief in man-made climate change and the alleged resulting moral obligation to act, was capable, if genuinely held, of being a philosophical belief for the purposes of the 2003 Regulations.
7. R(Hillingdon & Ors.) v SSfT [2010] EWHC 626 Claimants JR ed the SSfT s decision to confirm policy support for a 3 rd runway at LHR. SoS s White Paper on the strategy for the future of air transport over the next 30 years which concluded that LHR expansion would bring benefits but that support was conditional on measures re climate change, noise and surface access. Following consultation SSfT gave policy support to a 3 rd runway and that conditions could be met. Meanwhile Climate Change Act 2008 had been passed, which brought statutory targets. Claimants argued (inter alia) that the policy support was at odds with a report of the Climate Change Committee, created under the 2008 Act. Carnwath LJ held that because the climate change and economic components of HMG s air transport policy were not final it could conduct only limited review of the support given to LHR expansion. However the Court held that the SSfT had failed to substantiate its characterization of the runway s effect on the Piccadilly Line. NB More recent challenges by these Claimants and others. This is climate change litigation that has not gone and will not go away
8. R(Griffin ) v Newham LBC [2011] EWHC 53 Claimant applied to quash the decision of the defendant LPA to vary the conditions of the planning permission for operations at London City Airport to allow an increase from 70-80k ATMs to 120k. In Jan 2009 the SSfT announced new target for aviation emissions. In April 2009 the new target was confirmed by SS for Energy & Climate Change. G argued that (1) ministerial statements were a change in aviation and climate change policy and the LPA had erred by failing to take account of the change (2) LPA failed to consult neighbouring LPAs re noise. CoA refused the application and held the flight increase consistent with HMG policy, 2050 reductions target and with making the best use of existing infrastructure.
9. R v Dosanjh & Ors. [2013] EWCA Crim 2366 Appellants appealed sentences imposed following convictions for conspiracy to cheat the revenue. Appellants had been involved in a 39M VAT fraud re trading of carbon credits (EU Emissions Trading Scheme). Appellants sentenced to 15, 11 & 9 years in prison. Appellants submitted that the sentences were wrong in principle and/or manifestly excessive. CoA held that Parliament had deliberately left the offence of cheating the revenue in existence and the penalty art large because of its seriousness. However the CoA also determined that the sentences imposed were excessive and reduced them to 13, 10 and 8 years.
Access to Environmental Justice Where have we come from? Where have we got to? Where are we going? How crucial is access to justice in climate change litigation and more generally in combatting climate change?
The Lorax, Dr Seuss (1971)
Aarhus, Denmark
The Aarhus Convention The UNECE Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of March 2014, it had 47 parties, 46 states and the EU. All of the ratifying states are in Europe and Central Asia. The EU and UK both ratified the Aarhus Convention in February 2005 and became parties in May 2005.
Article 9 of the Aarhus Convention Art. 9(1) access to review procedure for any person whose request for environmental information has been ignored, refused or inadequately answered Art. 9(2) access to review procedure for members of the public concerned to challenge substantive or procedural legality of decisions, acts or omissions subject to public participation provisions of art. 6 Art. 9(3) access to administrative or judicial procedures for members of the public to challenge other acts or omissions which contravene provisions of national law relating to the environment Art. 9(4) these procedures shall provide adequate and effective remedies, and be fair, equitable, timely and not prohibitively expensive.
Aarhus and Costs in the UK R(Corner House Research) v SSTI [2005] EWCA Civ 192 PCOs to be awarded only in exceptional circumstances and according to the principles set out by the CoA in that case R(Buglife) v Thurrock Thames Gateway Development Corp. [2008] EWCA Civ 1209 [17-18]: there should be no difference in principle between the approach to PCOs in cases which raise environmental issues and the approach in cases which raise other serious issues and vice versa Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, per Carnwath LJ: The UK may be vulnerable to action by the Commission to enforce the Community's own obligations as a party to the treaty. However, from the point of view of a domestic judge, it seems to us (as the DEFRA statement suggests) that the principles of the Convention are at the most something to be taken into account in resolving ambiguities or exercising discretions (along with other discretionary factors including fairness to the defendant). [44]
Aarhus and Costs in the UK cont. R(Garner) v Elmbridge BC [2010] EWCA 1006, per Sullivan LJ at [32]: the Court of Appeal recognised in Morgan that some more specific modification of our domestic costs rules may be required. 24/08/11 - Decision of the Aarhus Compliance Committee ACCC/C/2008/33 that the UK s regime for costs in Aarhus environmental cases was not compliant with Aarhus 19/10/11 - UK Government s Consultation Paper CP16/11 Costs Protection for Litigants in Environmental Judicial Review Claims 01/04/13 - CPR 45.41 (aka Environmental Costs Protection Regime or ECPR )
The Old CPR 45.41 VII COSTS LIMITS IN AARHUS CONVENTION CLAIMS Scope and interpretation 45.41 (1) This Section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims. (2) In this Section, Aarhus Convention claim means a claim for judicial review of a decision, act or omission all or part of which is subject to the provisions of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998, including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject.
Other Environmental Claims SSCLG v Venn [2014] EWCA Civ 1539 Question for the Court of Appeal: could the costs protection afforded to environmental judicial reviews be extended to other forms of environmental claim (here s.288 of the Town and Country Planning Act 1990): Answer: A reluctant no (although consultation ongoing on Aarhus changes) it is now clear that the costs protection regime introduced by CPR 45.41 is not Aarhus compliant insofar as it is confined to applications for judicial review, and excludes statutory appeals and applications. A costs regime for environmental cases falling within Aarhus under which costs protection depends not on the nature of the environmental decision or the legal principles upon which it may be challenged, but upon the identity of the decisiontaker, is systemically flawed in terms of Aarhus Compliance (per Sullivan LJ [34])
Scope of Aarhus in UK Environmental Law Austin v Miller Argent [2014] EWCA Civ 1012 Private nuisance claims capable of falling within Art 9(3) but Art 9(4) requirement is no more than a factor to be taken in to account R(HS2 Action Alliance & Anr) v SSfT & Anr. [2015] EWCA Civ 203 Aarhus costs protection can apply to public authorities (nature of the claim, rather than the claimant is the key) R (Harris) v Broads Authority [2016] EWHC 799 (Admin) and R (Birchall Gardens LLP, Tarmac Trading Limited) v Hertfordshire County Council v BP Mitchell Limited, Welwyn Hatfield Borough Council, East Hertfordshire District Council [2016] EWHC 2794 (Admin) Claimants in multi-claimant action subject to shared or aggregated Aarhus cost caps (per Holgate J in both cases)
The New CPR 45.41-45 CPR 45.41 expanded to include statutory challenges CPR 45.42 - Opting out and other cases where rules 45.43-45 do not apply; requirement to state that the claim is an Aarhus one and comply with filing requirements CPR 45.43 Automatic limits are 5k for individual claimant or else 10k, 35k for defendant unless varied under CPR 45.44 provided that such variation would not result in litigation which is prohibitively expensive whether viewed subjectively or objectively (RSPB)
Questions for the Debate How easy is access to justice in climate change cases and are the Courts the right place to address the problem in any event?
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