A recent report by the Environmental Rights Centre for Scotland (ECRS) has called for the creation of an Environmental Court of Tribunal for Scotland. The report titled ‘Why Scotland needs an environmental court or tribunal’ was published on 5 October 2021 and has found that a low-cost environmental court would approve accessibility, reduce costs and plug Scotland’s accountability gap over the environment.
This report comes at a key time, where the world’s eyes are on Scotland for COP26, but earlier in 2021 Scotland’s legal system was found to be breaking international human rights and environmental law, due to the prohibitive costs of legal action. In July, a UN body ruled that there was a lack of progress in Scotland with meeting the requirements of the Aarhus Convention, which guarantees everyone in Scotland the right to go to court to defend the environment. The Compliance Committee for the Aarhus Convention have called for reform in Scotland ‘as a matter of urgency’. Our legal system has been found to be in breach of the Convention on numerous occasions since 2014, this is due to the high cost of taking environmental legal action.
Judicial review is the primary form of challenge, and this often costs tens or hundreds of thousands of pounds.
Could an Environmental Court solve these issues?
The report sets out the case for establishing an environmental court or tribunal (ECT) in Scotland and it discusses the four main reasons why an ECT is needed:
- Environmental legislation is unaffordable – a situation which is contravention of the Aarhus Convention. An ECT could be designed to ensure litigation is affordable and to improve access to justice.
- Certain types of environmental litigation do not allow the courts to consider whether the substance of a law has been violated. This is the subject of an outstanding ‘communication’ being considered by the Aarhus Convention Compliance Committee and it is questionable whether this situation is compliant with the Aarhus Convention. An ECT could be given the power to carry out merits review.
- Environmental litigation is carried out in several different courts and tribunals in Scotland, resulting in a system which is fragmented and inefficient. A single ECT could achieve efficiency benefits by reducing the risk of having multiple legal proceedings arising out of the same environmental dispute by having multiple legal issues heard in the same forum, providing administrative costs savings and increasing convenience for the parties.
- Effectively resolving environmental disputes requires legal and scientific expertise. Judges in Scotland may not be exposed to environmental disputes on a regular enough basis to allow them to develop a specialism in this area. An ECT could appoint technical or scientific members to sit alongside judges – and would allow for judges to develop specialist expertise.
Report author and ERCS solicitor Dr Ben Christman said:
‘Everyone in Scotland has the right to live in a healthy environment. As the law stands it is near impossible for ordinary people to use the legal system to stand up for the environment. It is eye-wateringly expensive and intimidating to go to court to challenge harmful environmental developments or policies. A low-cost, accessible environmental court or tribunal is urgently needed to ensure accountability over the environment.’
This is certainly ‘one for the watching’ as to how the idea progresses!
The report can be read in full here.
This article was co-written by Maya Allen, Trainee Solicitor.