Lloyd Austin: Environmental courts best way to resolve disputes

A CHANGE of legal process can have benefits for all, writes Lloyd Austin

We Scots are rightly proud of our outstanding natural environment. It is also recognised as an essential part of our economy, as it frames our “brand”. At the same time, economic development proposals – or 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 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. Across Europe, the rights and responsibilities of citizens in this respect are given legal form through the UN’s Aarhus Convention.

A key element of the convention is access to justice and while the Scottish Government says it is 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 are very high. This makes the process prohibitively expensive for most.

Environmental disputes are resolved differently in other jurisdictions, with the widespread introduction of specialist environmental courts over the last few decades.

The common theme underlying these courts is that they all provide a solid binding forum to resolve 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 mix of adversarial public inquiries, quasi-judicial ministerial decision-making, and judicial review. Environmental courts seem to more easily fit the letter and spirit of the Aarhus Convention.

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.

Evidence suggests that this approach would enhance decision-making, and increase consistency, certainty and predictability.

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. The outcome LINK seeks is better decisions – in quality and process – for all.

• Lloyd Austin is convener of LINK’s Environmental Governance Group and head of conservation policy at RSPB Scotland.