Back to the future: Brexit,EIA and the challenge of environmental judicial review

Abstract

This article explores how legal culture influences judicial interpretation of environmental legislation, which in turn affects how effectively public authorities are legally held to account for environmental decisions. Analysis of initial case law from the UK’s transposition of the EU Environmental Impact Assessment Directive shows English administrative courts interpreting the directive so restrictively as to undermine the purpose of the legislation itself. It will be suggested that the political sensitivity and legal complexity of administrative law, combined with the legally challenging nature of environmental problems, contribute to a legal culture of narrow interpretation. In contrast, the purposive and effectiveness-orientated approach of EU legal culture facilitated the House of Lord’s later reinterpretation of the Directive, allowing increased judicial engagement in the challenge of environmental law. This article therefore contends that ensuring effective environmental law after Brexit will require a reframing of the legal culture of administrative law itself.

Keywords

Administrative law Brexit effectiveness Environmental Impact Assessment environmental law interpretation legal culture

Brexit portends profound impacts on environmental law in the UK. Currently, some 80 to 90 per cent of environmental laws applicable in the UK stem from EU legislation.¹ While the European Union (Withdrawal) Act will maintain all EU Regulations and transposed legislation,² these will become open to repeal by Parliament. It will no longer be possible for courts to refer matters to the Court of Justice of the European Union (CJEU) and the European Commission will no longer bring enforcement proceedings against the UK Government for failing to adequately transpose or enforce EU laws.

Given how important the EU has been in generating and enforcing environmental regimes, academics and practitioners have mobilised to highlight how Brexit will unsettle environmental law. Reinforcing this work, this article argues that Brexit will adversely alter the legal culture in which UK courts interpret environmental laws. Unlike much of the current Brexit scholarship, however, this article will primarily look backwards, at how courts interpreted environmental laws during our EU membership and how this was influenced by legal culture.

To illustrate the differences in how the UK and EU legal cultures engage with environmental law, the analysis in this article will be two-pronged. First it will consider the concept of legal culture and how it shapes judicial interpretation of law. UK environmental law is primarily public law³ and this article will therefore focus on the legal culture surrounding administrative courts, which hold public decision makers to account for their use of public power. The decision makers must exercise their power according to the law and administrative courts have the task of interpreting what the law requires. It will be suggested that the supremacy in the UK of political over legal accountability, the unsettled grounds of judicial review and the political complexity of the administrative courts’ task helps to explain their tendency to interpret legislation narrowly. This will then be contrasted with the CJEU’s famously purposive approach to interpretation.

The article will then shift to a close analysis of three early cases on the implementation of the EU Environmental Impact Assessment Directive⁴ in the UK. Environmental Impact Assessment (EIA) is often considered a keystone of environmental law. While debate continues on the underlying nature of EIA,⁵ broadly it can be said that EIA regimes create a structured framework for making environmental decisions. The EU EIA regime, dating from 1985, requires that where a project is likely to have a significant effect on the environment these effects must be assessed before consent for the project is granted. In the UK the directive was implemented through the planning process, whereby planning authorities decide whether to give consent to projects. The planning authorities are held to account through the administrative law procedure of judicial review. EIA is therefore a prime example of environmental administrative law, creating a legal accountability framework for decisions on when and how our society feels it important to consider our impact on the world around us.

The case analysis will demonstrate how the interpretation of the EIA Directive in English courts was initially very limited. However, the House of Lords in Berkeley v Secretary of State for the Environment and Others ⁶ utilised EU law principles and the purposive approach of the CJEU to significantly reinterpret the directive. This portrait of how EU legal culture facilitated judicial engagement with the requirements of a key environmental law regime has a number of repercussions for the UK after Brexit. It suggests a need to consider whether administrative law sufficiently takes into account the adversity faced by courts in interpreting environmental law. It further suggests that assertions by the UK Government that existing judicial review processes are sufficient to hold public authorities to account should be questioned.⁷ While attention has rightly been paid to structural changes to laws or to institutions following Brexit, this article highlights that close attention should also be paid to the less visible issue of legal culture and how it affects the concrete expression of law in judicial review. This is important because administrative and judicial practices have a significant impact on levels of environmental protection. Compared to a change in black letter law, however, these changes will be subtle and unlikely to go through democratic processes of political accountability, namely discussion in Parliament.

Before beginning, two caveats are to be noted. The first regards the different jurisdictions within the UK. England and Wales share a legal system, while Scotland and Northern Ireland have their own systems and the environment is an area in which their devolved legislatures can and have taken action (e.g., through the Environmental Assessment (Scotland) Act 2006). The cases examined in this article are English law cases and the discussion of administrative law culture focuses on England and Wales. Nonetheless, the substantive Scottish rules on judicial review are similar to those in England and Wales, meaning that the conclusions here have relevance across the UK.

Secondly, this article cannot provide a complete examination either of UK legal culture or of the EU’s impact on environmental law. Instead, only one environmental regime – EIA – will be analysed. Equally, only a small part of the extensive UK EIA jurisprudence will be considered. The cases explored here were chosen because they are some of the earliest English cases showing the courts trying to understand the key obligations of the EIA regime. Turning our attention back to these early cases reveals a worrying insight into the legal culture in which environmental laws are interpreted in the UK. This insight, coupled with an understanding of the particular difficulties faced by courts holding public authorities to account, indicates that the challenge facing environmental law after Brexit goes to the very roots of our legal culture.

Part One – How legal culture affects environmental law

How courts define the scope of environmental laws has a substantial impact on how the UK Government and public authorities are held to account for the environmental decisions they make. In arguing that Brexit may have a detrimental effect on how courts interpret environmental law, reference will be made to the concept of legal culture. Nelken describes legal culture as ranging from:

facts about institutions such as the number and role of lawyers or the ways judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and, at the other extreme, more nebulous aspects of ideas, values, aspirations, and mentalities.⁸

Legal culture can also be seen in the form of legal institutions, legislation or court decisions and in the attitudes of those who work in the law. These varied factors contribute to the ‘legal language and traditions’ of a given jurisdiction.⁹ Taking note of these factors can ‘help reveal the broader historical and societal context that shapes the interpretation and development of law’.¹⁰ The differences between the legal cultures of UK administrative courts and of the EU will now be outlined, particularly with regard to their approach to environmental law. This will bring into focus the differences in how law is interpreted in each culture.

Administrative environmental law in England and Wales

As noted above, much environmental law is administrative law. Administrative law is concerned with holding public bodies to account. Mashaw describes an accountability regime as having to answer six questions:

Who is liable or accountable to whom; what they are liable to be called to account for; through what processes accountability is to be assured; by what standards the putatively accountable behaviour is to be judged; and with what effects.¹¹

Legal accountability in England and Wales involves courts holding public authorities accountable for their use of public power through the process of judicial review, with remedies available at the discretion of the court. The public authority is judged by the standards of administrative law. In broad terms, this requires that the power is exercised rationally, according to fair procedure and intra vires to the Act of Parliament or Prerogative conferring it, as per Lord Diplock’s statement in Council of Civil Service Unions & Others v Minister for the Civil Service. ¹² Whether power has been exercised rationally is defined by the test of Wednesbury unreasonableness, which means that courts can only strike down a decision if it was so unreasonable that no reasonable person acting reasonably could have made it.¹³

The first thing to note regarding administrative law culture is that, historically, the UK constitution has emphasised political accountability of government through Parliament over legal accountability through the courts.¹⁴ Some of the most important constitutional relationships operate on the basis of convention as opposed to legal rules. It could be said that this feeds into a constitutional culture in which discretion is respected and political accountability is accentuated, in contrast to systems of legal constitutionalism such as in Germany and the US where even acts of the legislature are reviewable according to the constitution. Fisher writes that courts have played a ‘marginal’ role, with decision makers instead held to account through ‘organisational structures, political processes, policies, managerial techniques and through the promotion of an ethos’.¹⁵

There has, however, been a shift towards an increased role for courts. A perceptible judicial movement can be seen in decisions such as Council of Civil Service Unions ¹⁶ (which held that the Royal Prerogative could be subject to judicial review) and Thoburn v Sunderland City Council ¹⁷ (recognising the supremacy of EU law over Acts of Parliament and suggesting a hierarchy of statutes), as well as in extra-judicial writings.¹⁸ The introduction of the Human Rights Act in 1998 (allowing courts to declare incompatibility between Acts of Parliament and the European Convention on Human Rights), the development of the doctrine of legitimate expectations¹⁹ (allowing courts to hold public authorities to their promises or representations under certain circumstances) and EU legal doctrines requiring courts to set aside measures contradictory to EU law, also speak to this movement.²⁰ Nevertheless, that courts have traditionally not been the primary accountability mechanism is part of the context in which they interpret the laws by which they hold public authorities to account.

When judicial review is used as an avenue of accountability, however, difficulties arise. Administrative law is a complex, young and fast-changing area of the law. The neat tripartite classification of review into illegality, irrationality and fair procedure noted by Lord Diplock in Council of Civil Service Unions does not reflect the current reality, due in part to the introduction of new styles of review from the EU and European Convention on Human Rights. The grounds of review themselves are littered with conceptually problematic distinctions: errors of law and fact,²¹ reviewable and unreviewable errors of law,²² dominant or non-dominant improper purposes,²³ and the requirements for substantive protection of legitimate expectations.²⁴ Indeed, the theoretical foundations of judicial review are still disputed.²⁵ The roots of these difficulties must lie principally in the deeply political nature of administrative law. As Harlow and Rawlings assert: ‘behind every theory of administrative law there lies a theory of the state’.²⁶ Or, as Moules writes:

Public law adjudication does not in truth involve the application of an established and determinate body of doctrine to the facts of the case before the court. Rather, it requires the court to apply the abstract grounds for review sensitively to the specific statutory context in the light of the applicable constitutional and political values.²⁷

Administrative law, the domain in which environmental law primarily operates, is therefore difficult legal territory. The courts must grapple with their subordinate role in accountability, the political sensitivity of the subject matter and the conceptual unreliability of administrative law tests. These problems are particularly acute in environmental cases. Fisher argues that, in EIA cases, the analysis courts are required to conduct when reviewing a screening decision defies the usual categories of error of law, error of fact or judicial deference to exercise of discretion.²⁸ Indeed, environmental problems present a host of legal challenges. This can be better understood by considering Fisher’s analysis of environmental law as ‘hot’ law. Derived from the concept used by economist Michel Callon,²⁹ ‘hot’ situations are those where the understandings of facts and values are never settled, meaning that the application of legal frameworks becomes difficult because the foundations of any framework are constantly shifting. While all frameworks will run into problems, in ‘hot’ situations ‘the controversies are structural and foundational’.³⁰

Numerous features make environmental law ‘hot’. It interacts with a range of other legal fields: principally tort, criminal and public law. Indeed, it is argued by Philippopoulos-Mihalopoulos that:

On the one hand environmental law encompasses, actually or potentially, everything that may ever be encompassed by law in general. On the other hand, and simultaneously to the above, what we commonly refer to as the legal discipline of environmental law does not really exist.³¹

Environmental law operates at both national and international levels and the harms that it tries to control are often cross-boundary in nature. Environmental disputes can involve actors and subjects staggered across the globe and through time, making them vastly more polycentric than in other fields. The boundaries and purposes of environmental law are less clear than in legal areas that regulate human-created concepts such as contracts or trusts. Finally and importantly, the contents of environmental laws often depend heavily on science, but scientific consensus may evolve rapidly or never exist. It is also a value-laden domain requiring those writing and applying the law to engage in the question of how our world should look and what constitutes an acceptable impact on other humans and species. In other words: ‘disputes over environmental values and environmental politics will often be at the heart of legal disputes’.³²

Despite its ‘hot’ nature, environmental judicial review remains an extremely important process. To understand how the law applies, it is not sufficient to read the legislation, but to consider how public authorities and reviewing courts behave as public authority discretion must be exercised within the bounds of conferring legislation, as interpreted by courts. As such, how courts define the legal obligations of the regime is crucial. Harte argues that: ‘cases which do reach the courts have a very significant effect in formulating the legal framework within which discretion is exercised’.³³ In this there is cause for alarm. Adler has said that ‘characteristic of English legal culture is a semantic and literalistic approach to drafting and interpreting legal rules’³⁴ and English courts have been described as having a ‘perverse liking’ for narrow interpretation.³⁵ While clear lines of causality are hard to draw, the legal uncertainty endemic of administrative environmental law must impact how the courts interpret legislation and provides a context for the narrow manner in which English courts originally interpreted the EIA Directive.

The Effectiveness-orientated EU legal culture

In contrast to this characterisation of English legal culture as semantic, the EU judicial system has been described as ‘among all international and transnational courts, unique in its effectiveness’.³⁶ This section will present effectiveness as central to EU legal culture, first exploring it in relation to judicial interpretation and as an EU legal principle in itself, before considering its relevance to environmental law.

Effectiveness articulates the idea that EU law must be interpreted and applied so as to ‘enable it to function in the way it has been conceived’,³⁷ which is itself an expression of effet utile, or teleological interpretation. Klamert argues that ‘in comparison to courts in other legal regimes, the European Court of Justice places more emphasis on a systematic and teleological interpretation’.³⁸ This kind of interpretation can be seen particularly in the cases creating the doctrines of supremacy and direct effect, neither of which were explicitly in the Treaties.³⁹ Direct effect was articulated in Van Gend en Loos ⁴⁰ where the CJEU held that, in certain situations, individuals have legal standing to demand government compliance with EU law. Shortly afterwards, in Costa v ENEL ⁴¹ the court held that EU law is supreme over national law; meaning contradictory national measures are illegal. The court argued that without these doctrines the obligations underpinning the treaty would be ‘contingent’ on the signatories not undermining them by subsequent legislative acts. These foundational doctrines therefore allowed the EU to function more effectively.

As a legal principle, effectiveness was first established in the case of Rewe-Zentralfinanz. ⁴² Confronted with the issue of procedural protection of EU rights, the CJEU held that it was national courts, applying domestic legal rules, which had been entrusted with ensuring the protection of these rights. The CJEU referred to Article 5 of the Treaty establishing the European Economic Community, which posits the principle of cooperation. This principle is reproduced in substance by the current Article 4(3) of the Treaty on European Union (TEU):

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

Basing itself on the principle of cooperation, the court upheld national procedural autonomy, on the condition that domestic procedural rules should be set aside if these made it ‘impossible in practice’ to exercise EU-derived rights. This requirement that EU rights be available in practice became known as the principle of effectiveness or effective judicial protection. This principle was the basis for the CJEU’s decision in Francovich⁴³ that the ‘full effectiveness’ of EC rules would be impaired if Member States did not have to provide reparation where they infringed EU-derived rights of individuals.

The balance between national procedural autonomy and the principle of effective judicial protection has varied over time, but certain key cases make effectiveness seem like the rule and not the exception – for example Factortame (No 1), ⁴⁴ and Marshall II.⁴⁵ Arnull writes that the decision in Unibet⁴⁶ ‘makes it clear that the overriding consideration is the effective protection of Union law rights’.⁴⁷ Effectiveness has therefore been described as a ‘constitutional principle’⁴⁸ and a General Principle of EU law,⁴⁹ even if it has not been classed as the latter by the CJEU.

This jurisprudence demonstrates that the CJEU’s aim in interpreting legislation and fashioning legal principles from the Treaties is to ensure that EU primary and secondary legislation applies as effectively as it can. This legal culture has extended to environmental matters where the CJEU’s purposive interpretation of legislation has been evident.⁵⁰ A notable example of this in relation to EIA is the Dutch Dykes case⁵¹ where it was held that the ‘wording of the Directive indicates that it has a wide scope and broad purpose’. On the facts this meant that the court read the directive to cover not only the construction of new dykes but also ‘all projected work relating to dykes’. Lord notes that a consequence of the CJEU’s teleological style of interpretation is that environmental laws often have a ‘more comprehensive effect and application than might be suggested by a strict interpretation of its language’.⁵²

This article does not intend to argue that the CJEU’s approach to interpretation is necessarily preferable to a more closely literary one. Indeed, Lees argues that purposive interpretation has caused uncertainty in the field of environmental criminal law.⁵³ Instead, this work is intended to draw attention to how the effectiveness-orientated approach of the CJEU may have influenced UK environmental law. Part Two will examine the influence in practice of this approach by analysing three early English cases where public authorities had failed to apply the EIA regime.

Part Two – EIA in the English courts

Environmental impact assessment, originally dating from the 1969 US National Environmental Policy Act, is used across the globe. Fisher’s theory of environmental law as ‘hot’ law is particularly relevant to EIA. Fisher explains that EIA requires public authorities to actively engage in ‘hot’ situations, in a legally prescribed manner.⁵⁴ Projects ‘likely to have significant effects on the environment’ are ‘hot’ situations due to the impossibility of knowing future effects, polycentricity and because ‘decisions about environmental impact cannot be disentangled from assumptions about how communities want to live.’⁵⁵

In the EU, EIA legislation was first written in 1985. The Directive was adopted to harmonise EIA procedure across the Member States, as part of the common market competence.⁵⁶ The Directive has since been amended (in 1997, 2003 and 2009) and a codification following significant case law was completed in 2011 (itself amended in 2014), under the new environmental competence in Article 192(1) of the TFEU.

The key obligation of the EIA Directive, as expressed in the 2014 amendment, is contained in Article 2(1):

Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.

Article 4(1) requires that projects described in Annex I must always be subject to assessment. Simply put, Annex I projects (such as crude-oil refineries and nuclear power stations) clearly have significant effects on the environment. By contrast, as per Article 4(2), projects in Annex II only require EIA if the public authority deems that the project is likely to have significant effects on the environment. Therefore, before conducting the EIA itself, the public body must first decide this question, which is known as the ‘screening process’. Screening can be on a case-by-case basis, or based on criteria that the Member State sets for itself.

Article 4(3) explains that the screening process should take into account selection criteria in Annex III. These include matters such as size and design, accumulation with other projects, risks to human health, absorption capacity of the natural environment and the probability, expected onset, duration, frequency and reversibility of the impact on the environment. Further, Article 4(4) says that where a Member State undertakes a screening determination, the developer should provide the information set out in Annex IIA, namely a description of the project and of any likely significant effects on the environment.

If EIA is required, Article 5 states that the developer ‘shall prepare and submit an environmental impact assessment report’. This must include, inter alia, a description of the project and its likely significant effects, as well as envisaged measures to lessen negative effects. Importantly, the report must include a non-technical summary of its findings.

In the UK, the EIA Directive was integrated into the planning process, making it an aspect of the decision whether or not to grant planning permission.⁵⁷ It was transposed into English law by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, but now operates under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.⁵⁸ Regulation 3 implements the primary obligation contained in Article 2(1) of the Directive. It requires that the:

relevant planning authority, the Secretary of State or an inspector must not grant planning permission or subsequent consent for EIA development unless an EIA has been carried out in respect of that development.

The transposed content of Article 5 of the Directive can be found in Regulation 18, which requires that developers submit an Environmental Statement (ES). Regulation 26 then requires the relevant public authority, when considering an application or appeal where an ES has been submitted, to (a) examine the environmental information; (b) reach a reasoned conclusion on the significant effects of the proposed development using the information in the ES and any of their own material; (c) integrate this into the planning permission decision; and (d) consider whether monitoring measures are appropriate.

With regards to the screening process, Schedule 2 of the 2017 Regulations contains a table describing the thresholds for various types of project. Below these thresholds the project will not normally require an EIA but may do so based on the sensitivity of the area. Schedule 3 sets out criteria relevant to the screening decision, transposing Annex III of the Directive. A significant part of UK EIA case law stems from developers contesting the result of the screening process. The obligation to consider environmental impacts should be uncontroversial – in rational decision making it is always good to understand the impacts of a decision. However, the extra time and expense of creating the environmental statement and the chance of the environmental impacts influencing a refusal of permission mean developers would prefer not to be subject to the EIA process.

It is worth noting that there is variety in how EU Member States have implemented the Directive. This is due to differences in legal and administrative culture⁵⁹ and differing understandings of the nature of EIA – as primarily a scientific, bureaucratic, or collective inquiry.⁶⁰ Despite these variations in theory and practical implementation, there is a key obligation in the Directive, which is that projects likely to have significant effects on the environment must undergo EIA before permission is granted. As the following case law shows, English courts struggled to uphold this central obligation until some time after the Directive was transposed.

The ‘Minimalist’ early case law

The Directive dates from 1985 and has been part of English law since the 1988 Regulations. There is academic agreement that the EIA cases from this point until the House of Lords ruling in Berkeley v Secretary of State for the Environment and Others ⁶¹ in 2000 failed to enforce the objectives of the regime. Fisher, Lange and Scotford describe the case law from before 2000 as ‘minimalist’⁶² while Stallworthy argues that there was a ‘slow embrace’ of EIA in the UK.⁶³ This part will first consider two cases from this ‘minimalist’ period before analysing the Berkeley judgment, confirming the importance of how courts interpret the EIA regime and the way in which EU legal culture affected the approach of the courts.

A caveat before beginning is that this is not an extensive look into the EIA case law, but is intended as a study demonstrating the drawbacks of restrictive interpretation. The first two cases date from the first five years of EIA’s transposition into UK law and in all three cases the planning authority had failed to consider applying the EIA Regulations when they should have done so. The point is that the contrast between Berkeley and the earlier cases illustrates the differences between English and EU approaches to environmental law and that the limitations of the English approach must be borne in mind as the UK renounces the direct influence of EU legal culture.

In R v Poole Borough Council ex parte Beebee, ⁶⁴ a High Court case dating from 1991, a local authority granted itself planning permission for a housing development on a Site of Special Scientific Interest.⁶⁵ Objections were raised, one of which was that the authority had not even considered if there should be an EIA before granting planning permission. The authority admitted that it never considered the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 at all. In a judgment given by Schiemann J, all parties were said to agree that the authority did not consider doing an EIA, but equally that they were not legally required to carry one out. While it is true that authorities are not obliged by law to carry out an EIA for all developments, if the authority does not at all consider whether the circumstances are such that an EIA is legally obligatory, then the obligation itself is undermined. Lord Hoffmann picked up on this problem in Berkeley, as will be shown below.

In Beebee the court interpreted the directive as legislation with the purpose of drawing planning authorities’ attention to relevant environmental knowledge. This interpretation of the legislation arguably renders redundant everything in the directive except for the bare bones of the obligation in Article 2(1), because it undermines the idea that the EIA regime has specifically chosen which information needs to be collected, by whom and in which form. In such a situation EIA can no longer function as a model for good decision making. Based on this limited interpretation, Schiemann J found that when the authority granted planning permission it did have environmental information in mind. The failure to comply with the EIA regime did not, in the court’s opinion, affect the outcome of the decision. As English administrative law allows courts discretion to refuse a remedy where the court is sure that the same decision would have been made, notwithstanding the error,⁶⁶ the court in Beebee exercised its discretion to refuse the remedy of quashing the planning permission.

In his report on the case, Harte suggests that the review could have been framed differently to get at the heart of the EIA obligation. First, the court could have asked whether a substantial housing development is, as a matter of law, an Urban Development Project (included in Annex II) and subjected the decision to review for error of law. Secondly, whether it was irrational for the authority to conclude that housing development on a site under the Sites of Special Scientific Interest protection scheme would not have a significant effect on the environment. The court, however, considered neither of these grounds. Harte’s argument shows that there were opportunities to use traditional judicial review techniques to engage with the EIA obligation, begging the question of why these were not taken.

In Wychavon District Council v Secretary of State for the Environment and Velcourt Ltd. ⁶⁷ the planning authority again had environmental information at hand but not in the form prescribed by the EIA Directive. In the High Court, Tucker J held that the information available to the decision-maker ‘covered all matters’ that an EIA would have provided and was not persuaded that the outcome would have been different had an EIA occurred. As such, as in Beebee, the court exercised its discretion to refuse a remedy, in effect failing to uphold the requirements of the Directive. Fitzpatrick posits that the judgment lacked real consideration of the assessment that had in fact been conducted, undermining the finding that the failure to conduct EIA had made no difference to the planning decision.

There were therefore opportunities for courts to review EIA cases on the grounds of error of law and irrationality and to question the validity of assertions that decision makers had made assessments equal to an EIA (equal in that had an EIA been conducted there would have been no impact on the outcome), but these were not taken. Recalling the discussion on the ‘hot’ nature of environmental law, it could be inferred that English administrative courts struggled to apply traditional grounds of review to the requirements of EIA or to understand or engage with what EIA required of decision makers, leading to the narrow and superficial interpretation of the Directive. These cases will now be contrasted with the strikingly different approach of the House of Lords in Berkeley.

The decision in Berkeley v Secretary of State for the Environment

In Berkeley redevelopment encroached into the River Thames. The Secretary of State called in the application for planning permission and held a public inquiry, but did not follow the requirements of the 1988 Regulations. In the Court of Appeal⁶⁸ the Secretary of State conceded that the planning authorities had not considered whether the project engaged the EIA Regulations, even though the nature of the project was such that this should have been considered. Indeed, Pill LJ agreed with counsel for the applicant that there was a real possibility that the Regulations would have required the developers to submit an ES. However, as in Beebee and Velcourt, the court decided that the breach of the Regulations would have made no difference to the result and refused to grant a remedy. Having considered earlier authority (namely Beebee and Velcourt), the Court of Appeal held that the decision maker had sufficient information to take the decision, even if this was not gathered in the form prescribed by the directive.

The House of Lords overturned the Court of Appeal’s decision. In doing so, the House of Lords approached its obligation as a reviewing court differently. In previous cases, courts had refused to quash the litigated decision on the basis that compliance would not have affected the decision taken. In contrast, before the House of Lords, Counsel for the Secretary of State conceded that this was not sufficient reason for a court to refuse a remedy. Lord Hoffmann’s explanation of this concession led him to imply into the Directive an obligation on Member States to consider whether projects matching those described in Annex II required EIA. This meant there was a legal obligation to consider whether it was necessary to conduct screening.

He stated that if there were no such obligation, Member States could restrict EIA to Annex I cases ‘simply by failing to consider whether in any other case an EIA was required or not’.⁶⁹ He underpinned this analysis by reference to the principles of cooperation and effectiveness, discussed above. He cited Article 10 of the EC Treaty (replaced in substance by Article 4(3) TEU), requiring Member States to ‘take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty’, as well as the CJEU’s statement in WWF v Autonome Provinz Bozen that Member States were under an obligation to ‘take all…measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects’.⁷⁰

Lord Hoffmann then considered the UK Regulations and noted that while there was no express obligation to consider if an application was a Schedule 2 application it was ‘not difficult, in order to make Regulation 4(2) effective’ to imply in such an obligation, in line with the principle of effectiveness and the duty of consistent interpretation expressed in Marleasing. ⁷¹

This analysis meant that failure to consider if the project was subject to EIA rendered the planning permission ultra vires. As Lord Bingham explained, the court’s discretion to refuse a remedy under common law was therefore very narrow. He also referred to the obligation in Article 10 of the EC Treaty on national courts to ensure full effective enforcement and that this further pointed towards exercising the discretion to quash. The only way the Secretary of State’s failure to consider whether the project fell into Schedule 2 of the Regulations could be excused was if there had nonetheless been substantial compliance with the law. Counsel for the Secretary of State contended that the process followed on the facts was substantially compliant with the EIA regime. Analysing whether this was the case compelled the court, finally, to engage closely with the requirements of the regime.

Considering the EIA legislation, the Law Lords found that its nature was essentially procedural. Along with emphasising the importance of following the ‘particular procedure’⁷² of the regime, Lord Hoffmann noted that the directive provided a right not only to an informed decision but also to an ‘inclusive and democratic procedure’.⁷³ He highlighted the creation of the ES as the ‘essential element’⁷⁴ of the regime, noting that the non-technical summary allows accessibility and participation by the public. Similarly, Lord Bingham described the provision by the developer of the ES as the ‘cornerstone’⁷⁵ of the regime, something that had not occurred on the facts.

Counsel for the Secretary of State had relied on the CJEU’s decision in Commission of the European Communities v Federal Republic of Germany ⁷⁶ to argue that substantial, if not total, compliance with the directive was sufficient, before contending that the process followed on the facts was substantially the same as that of the EIA procedure. However, Lord Hoffmann deemed that the Commission v Germany case proved only that ‘EIA by any other name’⁷⁷ would be sufficient. The close consideration of the procedural nature of the Directive lead the House of Lords to surmise that there was not substantial compliance with the EIA procedure. While the necessary information may have been available there was no ‘single and accessible compilation’⁷⁸ produced at the beginning of the process and including a non-technical summary, such as provided by the ES. As such, the court quashed the planning permission.

Berkeley therefore presents a broader and more purposive interpretation of the EIA regime. Lord Hoffmann himself noted that in the earlier case of R v North Yorkshire County Council, Ex p Brown ⁷⁹ he had described the purpose of the directive merely in its narrower sense, of ensuring that information regarding environmental impact was considered. Lord Hoffmann deemed this interpretation insufficient to characterise what had been legally required of the planning authorities on the facts of Berkeley. Prompted by the EU principles of effectiveness, loyalty and consistent interpretation, Lords Hoffmann and Bingham therefore grappled with the legislation in a way that had not yet been done by English courts faced with the EIA Directive. The influence of EU legal culture on the court’s interpretation of the legislation finally allowed EIA to act as a model for transparent decision making.

In the years since Berkeley, courts have seemingly taken a step back from the House of Lords’ reasoning. Lord Carnwath, speaking in Walton v Scottish Ministers ⁸⁰ held that Berkeley was a case of ‘pure principle’ as the project had been abandoned by the time the case reached the House of Lords, meaning economic factors weighing against quashing were not considered. Berkeley has therefore been described as a ‘high water mark’ for EIA and its authority on judicial discretion to quash has been questioned.⁸¹ In contrast, however, courts have upheld the engaged and more exacting reinterpretation of the EIA regime.

Moving forward from the originally narrow interpretation of EIA has required the courts to deal with the precise legal requirements of the EIA process. In delineating these requirements English courts have used traditional administrative law techniques, but with an awareness of developments at the EU level. For example, English courts have referred to the principle of national procedural autonomy and to statements by the CJEU in Dutch Dykes to confirm that a screening opinion is reviewable according to the usual test of Wednesbury unreasonableness.⁸² The screening opinion has therefore been characterised as an exercise of the planning authority’s judgment based on the particular facts and the courts have noted that the key terms ‘significant’ and ‘likely’ are not to be defined rigidly.⁸³ They are, nonetheless, legal terms and are to be ‘understood in the light of the developing case law of the European Court’.⁸⁴ Further, as noted by Fisher, Lange and Scotford, courts have reviewed more intensively the adequacy of the information upon which the screening opinion was based.⁸⁵ For example the Court of Appeal in R (Jones) v Mansfield DC took note of the information upon which the decision that no EIA was needed was made, drawing a distinction between the degree of information needed for the screening opinion and that required for the EIA itself.⁸⁶ On the relevance of mitigation measures to the screening opinion the Court of Appeal acknowledged that a planning authority was not in law required to ignore proposed remedial measures and that in some circumstances such proposals could properly lead to a finding that EIA is not required.⁸⁷ Nonetheless, in his judgment, Lord Justice Laws noted that if the measures were ‘not plainly established and not plainly uncontroversial’ then to fail to conduct EIA would be to ‘frustrate the purpose of the legislation’.⁸⁸

These judgments demonstrate a better understanding of the purpose and intricacies of the EIA regime than the pre-Berkeley cases. The courts would not be engaged in this nuanced analysis if not for Berkeley’s reinterpretation of the law; it provided the avenue necessary to allow courts to hold planning authorities to account using the usual administrative law tests of reasonableness and error of law. What is worrying as the UK leaves the EU, is the fact that EU legal culture had a manifest influence on the reasoning in Berkeley that allowed this judicial engagement with the ‘heat’ of environmental law to happen.

Administrative environmental law after Brexit

What are the ramifications of this comparison of legal culture in theory and in action? For one, government claims that judicial review will be a sufficient mechanism to hold public authorities to account should be questioned. In a 2016 report by the House of Commons Environmental Audit Committee, then Secretary of State for DEFRA (Department for Environment, Farming and Rural Affairs), the Right Hon Andrea Leadsom MP, negating the need for an environmental court, stated that:

we have a very clear court process in the United Kingdom that will absolutely be able to uphold the legislation that we undertake to take into UK law through the Great Repeal Bill.⁸⁹

The cases examined above challenge this claim, which contrasts starkly with Adler’s assertion that:

the general framework of English Law is inadequate to secure the aims of the [EIA] Directive and that English legal culture is hostile to regulation of this kind, and indeed unsympathetic to environmental values.

The continued relevance of this criticism is visible in a 2011 investigation that found Local Planning Authorities still have a ‘culture of “resistance”’ in applying EIA regulation.⁹⁰ The challenges faced by administrative courts interpreting environmental law strengthens current calls for a strong and independent accountability body for environmental matters,⁹¹ as such a body would likely positively influence the culture in which environmental laws are applied. It is therefore encouraging that DEFRA opened a consultation on plans to create a new independent environmental watchdog.⁹²

Indeed, much current Brexit scholarship has focused on how to replace the role of the Commission and judicial review’s unsuitability in this regard. This article, however, reveals there are problems with environmental judicial review itself, problems that go to the heart of both UK legal culture and the nature of environmental law. Brexit means that the CJEU’s influence, which pushed our courts to perform nuanced review of planning authority decisions and engage with the full scope of the EIA legislation, will be lessened, if not lost completely. As well as working to replace the role played by the Commission, this article shows that we should also be aware of the loss of the role that the CJEU has played. How, then, to prevent the ‘minimalist’ approach becoming the future of UK environmental law? One possible avenue is to review comprehensively what UK legal culture does well or less well with regard to environmental problems, and from there find ways to foster judicial engagement with what environmental laws require of public authorities and of the courts holding them accountable. In particular, this could include considering whether to promote a purposive outlook in UK courts faced with environmental legislation.

Conclusion

This article was written to highlight how English administrative law culture presents challenges for environmental law. Berkeley showed how English courts could harness EU legal culture to prevent reading down of the EIA Directive, facilitating judicial engagement with the ‘heat’ of environmental cases. As well as providing legislation and an independent enforcement body in the form of the Commission, the EU therefore also provided a legal culture that enabled environmental laws to be more effective than they would have been if interpreted only under English legal culture. To ensure that the UK has effective environmental law in a post-Brexit future it will be important, alongside preparing new institutional arrangements, to look backwards, to more fully understand how UK courts react to environmental legislation and this article can only hope to be a small part of this process. Legal accountability has a role to play in how humans interact with their environment, providing a template for good decision making. Let us ensure that our courts have the tools they need to fill this essential role.

Footnotes

Author's note

Maia Perraudeau is now affiliated to University of Edinburgh, Scotland.

Acknowledgement

I would like to thank Professor Liz Fisher for her supervision and advice throughout this project.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was conducted thanks to the Laidlaw Scholarship in Research and Leadership.