Government Keeps Flawed Environmental Justice Report Quiet

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Aย report on access to environmental justice has been quietly published by the Department for Environment, Food and Rural Affairs (DEFRA) during peak holiday season. Published on an obscure website, the reportย includesย inaccurate figures on the cost of pursuing environmental legal cases against theย government.

On 15 August DEFRA, now run by โ€œshy greenโ€ย Michael Gove, opened a consultation on a report about how the UK will implement the Aarhus Convention โ€“ which provides the rights to access to information, public participation in decision-making and access to justice when it comes to environmentalย issues.

The DEFRA report argues that the UK is in full compliance with all the three pillars of the convention. However, recently the government adopted new rules which expose people and organisations to potentially unlimited legal costs when pursuing an environmental case against the government.ย ย 

Earlier this month an Aarhus Convention Compliance Committee report found that this recent law reform moved the UK โ€œfurther awayโ€ from fulfilling its duty to allow citizens to bring forward environmentalย cases.

As ENDS first reported: โ€œThe way the [DEFRA] consultation has been presented appears engineered to avoid or minimize scrutiny, which itself would clash with the conventionโ€™sย principles.

โ€œIt was put out on DEFRAโ€™s dedicated consultation website and is not mentioned on gov.ukโ€™s list of government consultations, nor is it present on DEFRAโ€™s list of recently published documents โ€ฆ It also came at a time when many people are still onย holiday.โ€

DEFRA defended itself to ENDS, simply stating: โ€œThis consultation is hosted on a publicly available website. We welcome allย views.โ€

The report, writes ENDS, was also published without notifying NGOs who are currently challenging the governmentโ€™s change to the rules.ย  Last month environmental lawyers ClientEarth and NGOs Friends of the Earth and the RSPB took the government to court, claiming the rule change has a โ€œchilling effectโ€ on environmental legal cases. A ruling is expected thisย month.

Previous rules in theย UKย capped the costs that individuals, community groups and environmental groups have to pay on losing a case against a public body to ยฃ5,000 for individuals and ยฃ10,000 in all otherย cases. If they successfully won the case, costs were capped atย ยฃ35,000.

But under the new rules, claimants will have to provide the court with information about their personal finances when applying for Judicial Review. Even if judges decide to set a cap, or upper limit, on the costs that litigants could be held liable for during the proceedings, they will be able to increase the cap atย anyย stage.

The change in rules therefore makes it impossible for public interest litigants to know how much a case will cost from the start. Individual campaigners and charities could therefore find themselves facing costs of tens or even hundreds of thousands of pounds for a Highย Courtย action.

Despite the Ministry of Justice implementing the rule change in February, DEFRAโ€™s report wrongly states that costs for legal challenges have notย changed.

The consultation period will last just two weeks, ending on 29 August. There is no mention of the NGOs legal challenge or of the impacts Brexit mayย have.

Photo: James Cridland via Flickr | CC2.0

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Kyla is a freelance writer and editor with work appearing in the New York Times, National Geographic, HuffPost, Mother Jones, and Outside. She is also a member of the Society for Environmental Journalists.

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