European court opinion ratchets up pressure on UK over costs of environmental actions

European Commission: taking action against the UK

The European Court of Justice is likely to take a hard line against the UK over the high costs of legal action in environmental cases, following advice given to the court last week, it has been claimed.

Advocate-General Kokott indicated that a claimant acting in the public interest and without an “extensive” individual interest in the matter should not be expected to face high costs.

He was giving his opinion on a case referred by the UK Supreme Court, which is seeking advice on how to approach the requirement under EU law and the Aarhus Convention that costs in environmental cases should not be “prohibitively expensive”.

The case of R (on the application of David Edwards and another) v Environment Agency and others concerns a judicial review of a decision by the agency to issue a permit for the operation of a cement works. The application was rejected at first instance and by the Court of Appeal and House of Lords, with the latter making a full order for costs against the claimant, a woman who had taken over the case after Mr Edwards withdrew. The order for costs is now the matter of dispute before the Supreme Court.

Advocate-General Kokott said that in deciding whether the costs are prohibitively expensive, the court should consider both objective and subjective circumstances, such as the public interest in bringing such cases and the party’s ability to pay. He said “a person who combines extensive individual economic interests with proceedings to enforce environmental law can, as a rule, be expected to bear higher risks in terms of costs than a person who cannot anticipate any economic benefit”.

The ECJ’s full decision should come down early next year – the court usually sides with the opinions of its Advocate-Generals – and animal charity WWF said it indicated how the ECJ is also likely to approach a separate complaint against the UK brought by the European Commission that the UK’s judicial system in environmental cases is prohibitively expensive.

This action was sparked by a complaint first lodged in Europe in 2005 by the Coalition for Access to Justice for the Environment, whose members include WWF-UK, Friends of the Earth, Greenpeace, RSPB, the Environmental Law Foundation and Capacity Global.

Last year the Aarhus Convention compliance committee found the UK in breach of the convention on these grounds, while European Commission research from 2007 ranked the UK amongst the bottom five member states for access to environmental justice, largely on the basis of its rules on costs.

The case was referred to the ECJ in April 2011 and a hearing is expected in early 2013.

Carol Day, solicitor at WWF, said: “Legal action to protect the environment has always been confined to either the very rich or the very poor, with the vast majority of concerned citizens powerless to challenge the decisions of public bodies. The Advocate-General’s opinion puts the government on notice that more must be done if the UK is not to fall foul of the European court.”



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