This blog was written by Rachael Miller, third year Law student at the University of Glasgow, who is enrolled on the Environmental Law course convened by Dr Jill Robbie.
The modern understanding of environmental protection recognises that the causes and consequences of environmental harms are not confined to a single jurisdiction, and so internationalisation of environmental law is now favoured, to seek global cooperation and solutions.[1] Notwithstanding the benefits of this approach, the impact of specific developments can be devastating to individual communities; and so this blog considers the extent to which current law and policy enables communities to protect their environments, and seeks to suggest measures which might be taken to strengthen the position of communities.
Communities as Custodians
Principle 10 of the Rio Declaration asserts that ‘environmental issues are best handled with the participation of all concerned citizens’. This principle is seen in action around the world, for example, with the recognition that indigenous communities, such as those in Brazil and Peru, are more effective than the state at protecting their local environment from deforestation,[2] due to their historical and social connections to the land.[3] The notion that affected individuals are best placed (and perhaps entitled) to advocate for their own areas is somewhat mirrored in the programme of the current Scottish government, for whom community empowerment has become a policy theme.[4] One explanation for this is ‘concern that many established communities…do not operate in a sufficiently cohesive manner...[and] to construct new communities which are sustainable’.[5] Community-empowerment, therefore, has the two-fold aim of reducing current divisions, and ensuring communities thrive in the future.
Part of this involves schemes enabling communities to proactively seek to improve their local environment - for example, a fund for community-led regeneration, and the introduction of asset transfers to encourage communities to take over land and buildings.[6] And across the UK, communities are actively collaborating on environmental matters, such as the 43 communities investing in renewable energy.[7] Government initiatives are thus able to support communities to take positive steps to improve their environment. What happens, however, when a community needs to act defensively, and challenge a public authority decision (such as the grant of planning permission) which they fear threatens the environment? In such a situation, environmental law could give communities a platform to object, and safeguard their interests. I now turn to two recent examples of the successful use of environmental law as part of community action.
Fracking in Falkirk
Before fracking was effectively banned in Scotland, its perceived threat was a significant concern for many communities.[8] Fracking is widely controversial, and protested on a number of grounds, including concerns over air quality, exorbitant water consumption, and increased likelihood of oil spills.
A remarkable community reaction to these fears occurred in Falkirk. When drilling permission was sought, local residents launched action group ‘Concerned Communities of Falkirk’.[9] This grew to a sophisticated movement – the group created a ‘Community Mandate’ (signed by over 2,500 people) and, most impressively, a Community Charter ‘which is a rights-based document that sets out all the things…[which] are fundamental to the present and future health of our communities’.[10] This Charter is notable for two reasons. Firstly, the language used throughout echoes the three pillars of sustainable development - environmental protection, social welfare and economic development;[11] and secondly, the declaration calls for the determination of disputes by ‘a dialogue in which all stakeholders are given equal voice’, ironically reflecting the government principle of community engagement which Falkirk residents felt had been lacking in practice.[12] The result of this concerted effort was a public inquiry, and a large number of communities being galvanised by their success, with over fifty new anti-fracking community groups forming.[13]
The public inquiry into Falkirk never concluded due to the moratorium, and then ban, on fracking. The ban was in no small part due to the protests of community groups like Falkirk. ‘Concerted campaigning by communities… gradually [ramped] up the formal political debate’,[14] and during the consultation on fracking, the Broad Alliance (a ‘coalition of communities’) was recognised as a stakeholder.[15] The consultation itself received over 65,000 responses, 65% of those from communities, of whom 99% opposed fracking.[16] Overall, therefore, the example of Falkirk and community groups across Scotland demonstrates how powerful communities can be in environmental issues, with their action ultimately leading to a major national policy change.
Pylons in Powys
Another example of local action leading to a successful outcome for the community comes from Powys, in Wales. The planning application for pylons led to protests from the community,[17] attracting the support of the action group ‘The Campaign for the Protection of Rural Wales’. During the consultation process, over twenty groups threatened ‘peaceful direct action’,[18] describing the plans as ‘an environmental disaster’.[19] The result of a public inquiry hearing the complaints of ‘an alliance of…organisations’[20] was that the National Grid agreed to an advisory group made up of some of the community organisations,[21] and ultimately gave the community groups ‘the final say’ on how the pylons were to be designed and positioned.[22]
This demonstrates both that developers have the capabilities to meet with concerned groups and that it is possible for communities to engage productively with developers to reach an agreement with which all parties are happy. The discussions here were arranged in response to the protests of the community – but the success of the collaboration perhaps suggests that this model of engagement is one which could become a standard part of the development process.[23]
Limitations of the law
While these anecdotal success stories are encouraging, it cannot be ignored that communities are often unsuccessful in their challenges of decisions which they perceive as harmful to their environment, with recent examples of failed challenges including Carroll v Scottish Borders Council,[24] Sustainable Shetland v Scottish Ministers,[25] and Wildland Ltd. v Scottish Ministers.[26] This could be due to the nature of the challenge available to communities – appeal against decisions is by way of judicial review. This necessitates the argument being limited to how the decision was made, rather than affording communities the opportunity to restate their concerns. Therefore, judicial review raised by communities may see the scope of their challenge narrowed beyond their real complaint. This is in addition to the difficulties that many communities would face in raising sufficient funds for a judicial review, with the costs associated being described as ‘prohibitively expensive’ by the Aarhus Convention Compliance Committee.[27] A review in 2017 found that Scotland remains non-compliant due to the cost of actions,[28] and so reform is essential.
Suggested solutions
Thus, despite the potential for communities to be driven actors in environmental protection, the current legal system arguably does not afford them the necessary tools to fulfil this position. One potential reform to judicial review itself would be to change the standard of review (in environmental cases) from reasonableness to proportionality.[29] With proportionality, the intensity of review is greater,[30] allowing assessment of how the decision-maker balanced each factor.[31] This could improve the likelihood of communities raising successful judicial reviews as, in cases like Sustainable Shetland where communities feel an environmental issue has not been accorded sufficient weight, a proportionality assessment would enable the courts to consider whether this was the case.
However, even if judicial review could be improved to heighten the prospects of success, this does not remedy the prohibitive cost of actions.[32] Indeed, in an ongoing review of the planning system (which is closely aligned to the implementation of environmental law[33]), the Scottish government stated that it did not intend to reform the ‘appeals end’ of the process, but rather focus on the initial stages of development to encourage ‘stronger early engagement’.[34] This review led to the Planning (Scotland) Bill, introduced into parliament in December 2017, s.9 of which outlines ‘local place plans’ and s.10 of which seeks to improve community engagement by requiring regulations to be produced regarding consultation before planning schemes. The details of these mechanisms are left for secondary legislation. The Scottish government itself is positive about the Bill’s potential, stating that 'increased community involvement in planning…could strengthen environmental consideration’.[35] However, it is perhaps frustrating that the detail of involvement of communities was not guaranteed in the primary legislation, with the Royal Town Planning Institute questioning whether the Bill ‘is bold enough’.[36] Given the culture of apathy from developers towards community interests,[37] it is essential that communities have an enforceable right to be heard, and this must be addressed in the secondary legislation. Overall, the Bill reflects the policy of community engagement, but more detail is required for this aim to be realised.
Conclusion
In sum, the recent focus of the Scottish government on community involvement could be expected to afford communities a voice regarding developments affecting their environment, and this is somewhat supported by both the new community schemes, and the anecdotal success stories. However, if communities are to make full use of environmental law to be truly empowered to protect and make decisions about their local environment, I would argue that more must be done to ensure that the legal remedies available are effective, both in their ambit and their accessibility. The limitations of judicial review perhaps justify allowing proportionality as a ground of review in environmental cases. However, it is acknowledged that environmental protection is best ensured when communities are involved from the outset, and so community engagement should be made a meaningful part of the decision-making process. The Planning Bill, as introduced, indicates an intention to enable community engagement, but the details of the mechanisms for this remain unknown. Given the overlap between planning law and environmental law, the extent to which the government is able to fulfil its rhetoric on community involvement in planning is significant due to its potential to set a precedent for the level of community empowerment across environmental law; and so the detail which will be set out in the forthcoming secondary legislation can be expected to have a significant effect on the ability of communities to effectively protect their environments.
~ Rachael Miller
Notes
[1] Environmental Law, S. Bell et al., Oxford University Press (2017) at 28
[2] Securing Rights, Combating Climate Change, World Resources Institute (2014)
[3] Local people preserve the environment better than government –
[4] See e.g. Community Empowerment (Scotland) Act 2015
[5] Building sustainable communities, G.Lloyd & D.Peel, Scottish Planning and Environmental Law (2009) at 74
[6] https://beta.gov.scot/policies/community-empowerment/
[7] The communities taking renewable energy into their own hands - https://www.theguardian.com/environment/2012/jan/06/communities-renewable-energy
[8] And remains so in England – see e.g. ‘Frack Off’, which links up over 250 anti-fracking community groups – www.frack-off.org.uk
[10] http://www.faug.org.uk/campaign
[11] See e.g. 2005 World Summit Outcome, para.48 - http://www.un.org/womenwatch/ods/A-RES-60-1-E.pdf
[12] http://faug.org.uk/community_charter.pdf
[13] Ibid.
[14] Going On The Offensive, E.Young & R.Lander, Green European Journal (2015), Volume 10
[15] http://www.broad-alliance.org/
[16] Scottish government bans fracking after public opposition -
[17] Powys substation plans prompt Abermule protest- http://www.bbc.co.uk/news/uk-wales-mid-wales-12860303
[18] Opposition groups kick up storm over windfarms in Wales - https://www.theguardian.com/environment/2012/feb/28/windfarms-and-pylons-opposition-wales
[19] Ibid.
[20] Wind farm inquiry in Welshpool, Powys, attracts 300 protesters - http://www.bbc.co.uk/news/uk-wales-mid-wales-22758109
[21] National Grid unveils plans to bury cables underground – http://www.bbc.co.uk/news/business-29989654
[22] Final say on route for £300m pylons for Powys wind farms – http://www.bbc.co.uk/news/uk-wales-30084485
[23] See below
[24] [2015] CSIH 73
[25] [2015] UKSC 4
[26] [2017] CSOH 113
[27] Environmental judicial review is ‘prohibitively expensive’, uncertain and insufficient, D.Hart QC, UK Human Rights Blog - https://ukhumanrightsblog.com/2010/08/31/aarhus-committee-rules-that-uk-judicial-review-for-environmental-cases-is-prohibitively-expensive-uncertain-and-insufficient/ ; Aarhus Convention Compliance Committee hereafter ‘the ACCC’
[28] UN Economic and Social Council, ECE/MP.PP/2017/30, para. 1(a)(ii) - https://www.unece.org/fileadmin/DAM/env/pp/compliance/MoP6decisions/Compliance_by_United_Kingdom_VI-8k.pdf
[29] Suggested by the ACCC - Findings And Recommendations Of The Aarhus Convention Compliance Committee With Regard To Communication Accc/C/2008/33 Concerning Compliance By The United Kingdom (2010), para.126 - https://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-33/Findings/C33_Findings.pdf
[30] R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26 at 27
[31] Ibid.
[32] See e.g. Scottish conservation charity pays £125k to settle wind farm case -https://www.thirdsector.co.uk/scottish-conservation-charity-pays-125k-settle-wind-farm-case/governance/article/1433534
[33] See e.g. Scottish reform of the town and country planning system; is it too little too late for post-Brexit Scotland?, A.M.Slater, Environmental Law Review (2017) 239 at 239
[34] Places, people and planning: Position Statement, Scottish government (June 2017) at 9
[35] Review of the Scottish Planning System – Planning Bill, SEA Environmental Report (June 2017) at 7
[36] Available at - http://www.rtpi.org.uk/briefing-room/news-releases/2017/december/rtpi-scotland-calls-for-planning-bill-to-be-bold/
[37] See e.g. Construction barriers to engagement or knocking them down?, C.Symonds, Scottish Planning and Environmental Law (2017) 112 at 112