Environmental principles as legal foundations of UK environmental policy: Bedrocks or minefields?
By Professor Eloise Scotford, University College London.
Environmental principles are now fundamental ideas in environmental law and policy across the world. In a variety of political contexts and legal cultures, groups of environmental principles frame environmental policy ambitions, set explicit statutory goals, drive innovative judicial reasoning concerning environmental protection, and even possess constitutional status. In India, the Supreme Court has interpreted the national constitution so that the polluter pays principle and precautionary principle are ‘part of the law of the country’. In Australia, principles of ‘ecologically sustainable development’ – including the precautionary principle, principle of intergenerational equity, and conservation of biodiversity and ecological integrity – infuse environmental and planning laws at national and state levels of government. In the European Union, successive Treaty revisions have over time promoted a set of six specific environmental principles (e.g. in Article 191 of the Treaty on the Functioning of the European Union) – the precautionary principle, principle of prevention, principle of rectification at source, polluter pays principle, sustainable development, and the integration principle. As a result, these six principles have an entrenched legal status in the development of EU environmental law and policy. And now, in Section 16 of the European Union (Withdrawal) Act 2018, we find environmental principles being used to define one of the few areas of substantive post-Brexit policy addressed directly in this constitutionally-transformative UK statute. The list of these UK-mandated environmental principles (so far) includes the six EU environmental principles above plus the three ‘pillars’ of the Aarhus Convention concerning rights of access to environmental justice and information and public participation in environmental decision-making.
There are many reasons for the proliferation of environmental principles globally, including their symbolism and fundamental character as ‘principles’, as well as their malleability and easy currency as expressions of environmental ambition. Principles are highly symbolic commitments to maintaining environmental protection as a policy priority in relation to issues – such as climate change, air quality, nature conservation, chemicals regulation, and waste regulation – that are deeply complex to address and regulate. Maintaining standards of high environmental protection in these areas covering diverse fields of social and economic activity is a vast and evolving regulatory challenge that spans traditional government portfolios of responsibility. Environmental principles represent an easily-communicable vision (or visions) for approaching this task, indicating that environmental protection is being taken seriously. More cynically, environmental principles are very general ideas that people – politicians, civil society groups, states, international organizations – with different interests, mandates and political agendas often feel comfortable signing up to, without needing to agree detailed rules or regulatory frameworks.
However, these reasons for the proliferation of principles do not tell us much about their legal force. Environmental principles have increasingly crept into a variety legal forms – in statutes and court judgments in particular – as a result of the pragmatic policy reasons outlined above, through historical moments of political negotiation and consensus (as with Brexit), and also through the operation of transnational environmental law networks through which legal ideas concerning environmental protection radiate. As a matter of legal doctrine, however, determining the impact of such ‘legalized’ environmental principles is complicated. They are too vague and ambiguous in meaning to constitute universal legal ‘rights’ or other norms of international law. Further, as pithy statements of environmental policy, when environmental principles are given some form of legal status, this does not establish a straightforward legal ‘rule’ but entrenches a complex (and contestable) policy position in legal form. This can be seen in section 16 of the Withdrawal Act, which requires the enactment of legislation that places a duty on the relevant Secretary of State to publish a policy statement on the application and interpretation of the listed environmental principles, including the circumstances in which Ministers must have regard to those principles in developing policy. The legal consequences of this kind of mandated and constrained policy development raise complex issues of UK constitutional and administrative law. A fraught legal issue in the UK context is how involved courts should be in defining, upholding or reversing government policy positions against the standards of our future statutory set of environmental principles, which in general terms will cover a wide spectrum of social and economic issues relating to the causes and impacts of environmental problems. This kind of constitutional challenge would arise acutely if a public interest case were ever brought relying on these principles to challenge the government’s future policies on environmental grounds.
Environmental principles are not magic formulae or panaceas for environmental protection. As legalized policy guarantees, their implications are dependent on the legal cultures in which they find formal expression. It is unlikely that ‘UK environmental principles’ will have the same legal roles as in the extensive body of EU case law concerning environmental principles (depending on our post-Brexit rules for how our courts must or can take into account CJEU case law), since they will be interpreted and fashioned by UK rather than EU legal doctrine. In the UK, we have no established body of domestic legal doctrine for judicial reasoning with environmental principles. Indeed, UK judges have sometimes struggled to apply the CJEU’s reasoning involving environmental principles. However, UK doctrine concerning environmental principles will need to develop in light of their prominent statutory presence. At this stage, we can say with some confidence that environmental principles will have an influential role on regulatory practice in areas relating to environmental issues (however the government chooses to define these), since established administrative practice already exists under the influence of EU environmental principles. However, the new UK legislative incarnation of environmental principles will likely raise difficult questions of legal doctrine and potentially catalyse new paths of legal reasoning by UK courts.
The story of environmental principles in various legal contexts globally is one of connected but also ad hoc and heavily contextualized developments of environmental policy ideas reflecting moments and currents of political determination and change. There is no universal legal story for environmental principles. Different environmental principles might well have been included in the Withdrawal Act (and could yet be added). Environmental principles are powerfully resonant commitments to a direction of policy travel that prioritizes environmental protection. Where that direction ultimately leads in the UK context post-Brexit, particularly in legal terms, is something for which there is no domestic legal blueprint and there are no easy predictions. The questions are often asked: Do we have the right principles? What will they do legally? These are not the right questions. Our current political events are dictating what those principles are and are beginning to shape the legal impact they will have.
Eloise Scotford is Professor of Environmental Law, Faculty of Laws, UCL. She is the author of Environmental Principles and the Evolution of Environmental Law (Hart Publishing 2017).
The featured image is an external view of the UK Supreme Court (Source: UK Supreme Court Press Office).