In February 2017, the United Kingdom announced sweeping changes to its court rules that diminish the ability of individuals and non-governmental organizations (NGOs) to bring legal challenges to protect the environment. Under the changes, any person or organization wanting to spark a judicial review of environmental cases will not automatically receive the protection of a “cost cap” if they lose.
This procedural change has been criticized and challenged by NGOs in the United Kingdom as one of the early warning signals that Brexit could result in a reversal of the progress made in advancing environmental justice in the United Kingdom under the European Union’s regional umbrella. As the UN recently warned, these changes have moved the United Kingdom further away from achieving the key tenets of environmental justice — such as mitigating sources of environmental pollution and approaching development — in a manner that respects, protects and fulfills human rights in all sectors of society.
Several studies have compiled growing evidence of environmental injustice in, and caused by, the United Kingdom. The studies discuss prohibitive costs for filing environmental cases; energy poverty and uneven access to food resources across the United Kingdom; inadequate opportunities for stakeholder participation in project planning and implementation; and legislative provisions that limit access to judicial remedies for victims of environmental pollution, among others. Further, the United Kingdom has been criticized for facilitating international projects that stifle environmental justice, especially in developing countries.
At the same time, the European Union’s robust regional governance approach to environmental justice, in addition to the decisions of EU bodies and courts, have positively shaped environmental justice jurisprudence in the United Kingdom.
The European Union has one of the world’s most comprehensive regimes on environmental justice. The Union has supported international environmental treaties that promote the PANEL principles: participation, accountability, non-discrimination and equality, empowerment and legality. Similarly, the Court of Justice of the European Union (CJEU) has interpreted the Aarhus Convention in a comprehensive manner, leading to a sharp rise in environmental justice jurisprudence in the United Kingdom. For example, in European Commission v UK, the CJEU ruled against a UK costs regime that imposed excessive court filing fees that prevented some NGOs from challenging environmental policies.
Post-Brexit, the United Kingdom’s commitment to environmental justice — especially the PANEL principles — may be weakened. The possible loss of the courageous and imaginative jurisprudence of EU bodies and courts on fundamental questions regarding the PANEL principles could halt recent progress on environmental justice issues in the United Kingdom.
For instance, it remains unclear if, when and how UK judges could consult and apply EU environmental decisions post-Brexit. Section 6(2) of the EU Withdrawal Bill states that a UK court may only refer to anything done by EU courts post-Brexit “if it considers it appropriate to do so.” By not laying down clear and comprehensive criteria on when it will be “appropriate to do so” for a court, this indeterminate and ambiguous provision could result in an uncertain and inconsistent approach to the interpretation or application of important EU-derived domestic legislation in UK courts. Without a clear and comprehensive framework that mandates UK judges to have regard to EU case law where interpretation of EU law is necessary, the ability of an NGO to successfully invoke applicable EU rulings will rest squarely on the whims of the judge or court concerned.
Apart from fostering a common and coordinated position for EU members on environmental issues, the European Union provides regional monitoring, enforcement and knowledge-sharing mechanisms aimed at ensuring member states properly implement EU legislation and directives on environmental issues.
Again, it is unclear how the United Kingdom and the European Union will decide to move forward on the issue of regional cooperation and knowledge sharing. If the United Kingdom adopts and domesticates EU environmental legislation, perhaps it could continue to access these regional centres in some capacity. In turn, the European Union may choose to restrict its platforms and resources to EU members.
Another possibility is for both parties to work together and agree to continued technical cooperation on environmental issues. This would be the simplest route, requiring no new plan. Whatever route is taken, Brexit could limit the United Kingdom’s access to the European Union’s knowledge-sharing networks and institutions that have facilitated progress on energy transition and environmental justice issues.
Further, Brexit may exacerbate energy poverty concerns in the United Kingdom. Despite its challenges, the European Union remains a good example of the possibility and workability of addressing energy poverty through integrated regional electricity markets. Directive 2009/72/EC called on all EU countries to develop cross-border interconnections and facilitate the sale of electricity on equal terms in order to tackle energy poverty. The United Kingdom has been one of the strongest beneficiaries and advocates of this integration.
In 2014, 45 percent of the United Kingdom’s gas consumption and 6.5 percent of its electricity needs relied on imports. Given this growing interdependence and the strong position the United Kingdom has taken with regard to a unified energy market, it is unlikely that the United Kingdom will want to unplug itself from the EU internal energy market. Isolating UK electricity systems could exacerbate energy poverty in the United Kingdom.
Leaving the European Union could be a setback for environmental justice in the United Kingdom, unless there is a firm commitment to its tenets. The implementation of domestic environmental laws, policies and procedures is necessary for the advancement of environmental justice in the United Kingdom.