Environmental justice costs decision

A significant barrier to environmental justice looks likely to crumble following an Advocate-General’s Opinion that campaigners cannot be expected to bear the risk of paying the other side’s legal costs unless they have an “extensive” economic interest in the outcome.

Advocate-General Kokott delivered her Opinion last week on the meaning of “prohibitive expense” in environmental legal proceedings, in a case referred to the European Court of Justice by the Supreme Court, R (on the application of Edwards and Pallikaropoulos) v the Environment Agency & Ors: C-260/11.

Under EU Directives implementing the 1998 Aarhus Convention, member states must ensure that environmental legal proceedings are “not prohibitively expensive”.

The Supreme Court asked how it should apply the Aarhus Convention and the provisions implementing it, in a dispute over an order for costs. The original case arose from a judicial review of the Environment Agency’s decision to grant a permit for a cement works.

Kokott said legal protection of the environment serves not just the claimant but the public interest, and therefore individuals “cannot be expected to bear the full risk in terms of costs of judicial proceedings up to the limit of their own capacity to pay if the proceedings are also, or even exclusively, in the public interest”.

However, she added: “A person who combines extensive individual economic interests with proceedings to enforce environmental law can, as a rule, be expected to bear higher risks in terms of costs than a person who cannot anticipate any economic benefit.”

And, when courts assess whether the costs are prohibitive, “account must be taken of the objective and subjective circumstances of the case”. This means they must look at the financial means of the claimant as well as the public interest involved.

Advocate-General’s Opinions are not binding on the European Court, but are nearly always followed.

Environmental justice campaigners have argued for years that the fear of losing your home to pay legal costs is a powerful disincentive to ordinary people who want to use the law to protect their environment.

Carol Day, solicitor at WWF, says: “Legal action to protect the environment has always been confined to either the very rich or the very poor, with the vast majority of concerned citizens powerless to challenge the decisions of public bodies. The AG’s Opinion puts the government on notice that more must be done if the UK is not to fall foul of the European Court."