New rules that came into force yesterday (28 February) will make it virtually impossible to bring a public interest case to protect the environment.
ClientEarth, Friends of the Earth and the RSPB have started legal proceedings against the Lord Chancellor and Secretary of State for Justice to challenge what the organisations believe to be unlawful new costs rules for environmental cases.
A ‘disaster for the environment’
The new rules weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. Judges will be able to increase the costs cap at any stage, making it impossible to know how much a case will cost from the start.
‘The new rules spell disaster for the environment. With no certainty on costs, who will put their finances, perhaps even their house, at risk to bring a case? Individuals and campaigners need financial certainty before they bring a case in the public interest. After Brexit, this will become even more important, because the EU won’t be there to make sure our government is following its own environmental laws.
‘It is ironic that we have to bring this case before the court rules change, because the financial risk introduced by the new rules is too high to bring it afterwards. The danger of the government’s plan is clear and it must be changed so people can still go to court to protect the environment.’
An attack on environmental cases
Last week, the House of Lords statutory instruments committee, which reviewed the rules, concluded that, ‘Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to consultation and the submission received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts.’
This finding supports the view of campaigners that the government’s new rules will make it prohibitively difficult for individuals and environmental groups to bring environmental cases of wide public interest. This includes cases like ClientEarth’s challenge against the UK government over toxic air pollution.
This a huge disincentive to bringing a public interest environmental case, and ClientEarth also says that it breaches the law.