KN Green Week: Plastic Packaging – Reduce, Reuse, Recycle
We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change. David Attenborough is the voice of two new hard hitting documentaries aimed at educating audiences worldwide about the damage human activity is doing to the natural world. The Swedish teenage climate activist, Greta Thunberg, began what became a worldwide movement by inspiring children to strike from school in protest at a failure of national leaders to take action on climate change. The Extinction Rebellion movement has organised large civil disobedience demonstrations in London to raise awareness of the impending climate change disaster.
Although less eye-catching and headline grabbing, there have also been legal challenges by environmental groups against the government’s decision to expand Heathrow Airport. The challenges were made by way of judicial review, which is the type of legal claim brought by individuals or groups who want to hold public bodies to account and try and change the course of public policy.
There were five applications for judicial review which were heard by the High Court in March 2019. One of these was brought by ‘Friends of the Earth’ and another by ‘Plan B’, which describes itself as ‘a networked, international movement of legal action to prevent catastrophic climate change’. Plan B’s case was that the government policy to expand Heathrow airport is illegal on the grounds that the policy fails in a number of ways to account for its compatibility with the UK’s climate change obligations.
But how much can those concerned about climate change hope to achieve via judicial review? What are the costs and benefits of taking legal action rather than taking to the streets?
Firstly, and most obviously, it is definitely cheaper to attend a protest than to apply for judicial review. Judicial review is, unsurprisingly, an expensive business and it is made even more so by the costs rules which mean that an unsuccessful claimant in judicial review claims not only have to pay their own costs but may also be ordered to pay the other side’s costs. Understandably, this puts many claimants off bringing a claim in the first place.
Thanks to the Aarhus Convention, from 2013 there have been rules in place designed to provide some protection for claimants bringing judicial review claims in relation the environment. The Aarhus Rules, as they are known, introduced a cap on liability for claimants of £5,000 (or £10,000 if the claimant is a business). However, in 2017 this protection was watered down somewhat when the Rules were amended to allow the court to vary this cap up or down, meaning that claimants still face uncertainty and financial risk if they want to bring an environmental judicial review claim.
If you can afford to bring a judicial review claim, is this an effective way to try and save the planet?
As this blog goes to press, we hear that the Heathrow judicial reviews have been unsuccessful, although Friends of the Earth have already indicated that they will appeal this decision. ClientEarth have had a number of successful challenges against the UK government in relation to air pollution, which have shown that persistent legal action can be very effective in holding the government to account. The government tried three times to implement an Air Quality Plan (AQP) in supposed compliance with the 2008 EU Directive which imposed limits on air pollution. Each time, the AQP plan devised was challenged by ClientEarth and found by the High Court to be unlawful. On the third occasion, in 2018, the Court took the highly unusual step of giving ClientEarth permission to return to Court if evidence arose that the government was not complying with the latest order. As a result of these judicial review claims, the government has spent nearly a decade being forced by the Court to improve its air pollution policies. The 2018 judgment concluded:
It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising an AQP which complies with the Directive and the domestic Regulations. Each successful challenge has been mounted by a small charity, for which the costs of such litigation constitute a significant challenge. In the meanwhile, UK citizens have been exposed to significant health risks.’
As a result of the most recent ruling in 2018, the government has told 28 councils to draw up plans to tackle NO2 levels and a further 33 to carry out ‘feasibility studies’ on whether a ‘Clean Air Zone’ was needed to reduce levels in the ‘shortest possible time’.
The example of ClientEarth shows that if you can afford to bring a judicial review claim, you might enjoy a relatively quiet and yet powerful success which forces the government to take climate change seriously.
What else could the law achieve to help save the world?
To date, much of the pressure to avoid an environmental catastrophe seems to have been placed on the individual – to change various habits such as reducing plastic and packaging (see our blog Plastic Packaging – Reduce, Reuse, Recycle), considering their carbon footprint (see our blog Climate change and the individual: Where to begin… by starting to ask the right questions), thinking about what they eat (see our blog Eating the Environment Better) and the clothes they buy (see our blog Confessions of a (mostly) reformed ‘Shopaholic’).
But whilst individuals will do what they can, surely if we want to see any significant improvements, the companies who are producing and selling all of these things (clothes, food, plastic, energy, etc.) must be forced to make changes to their business practices and be held to account. One of the obvious ways of doing so would be to enact legislation – for example, requiring supermarkets to reduce plastic packaging by setting quotas or targets; creating offences for businesses that don’t recycle; banning plastic straws and non-reusable coffee cups. Companies could also be required to publish a ‘sustainability statement’ in the same way that they are currently required to publish a Modern Slavery Statement in accordance with the Modern Slavery Act.
So why has so little been done? The answer must surely be to do with money, and the costs businesses would have to incur to comply with any such legislation. But is it really acceptable to continue using money as an excuse? As Greta Thunberg recently told the House of Commons – the “future has been sold so that a small number of people can make unimaginable amounts of money”. Ultimately, saving the planet depends on a trade-off between saving the environment and preserving wealth. Something will have to give – and let’s hope it’s not our planet.
The law (be it through judicial review or legislation) is a vital tool in calling those who are acting against the planet’s best interests to account. Both Parliament and the courts have a far greater role to play in creating law which brings about the change we need.
As the UK settles into its tenth week of lockdown, we are starting to see glimpses of hope that we might soon be back to work, the gym, and school. But while we are all looking forward to enjoying things we did before lockdown, we shouldn't be so hasty to revert back to all of our old ways.
In the last week, Philip Alston, the UN special rapporteur on extreme poverty and human rights said the world was increasingly at risk of “climate apartheid” where the wealthy pay to escape the impact of climate change and the rest of the world is left to suffer.
In April 2019, Polly Higgins, a British barrister, passed away after devoting ten years of her life to a campaign for a new law of ‘ecocide’ – a law that would make corporate executives and government ministers criminally liable for the damage they cause to the environment. In this blog, we consider the current framework for punishing environmental crime at international level, and what the proposed crime of ecocide might look like.
Access to justice is central pillar to the rule of law. Ensuring individuals and organisations can afford access to justice is a real challenge, none more so than in environmental cases where the success is not driven by monetary reward.
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.
For most of my life, shopaholic is a label I would have happily applied to myself. Shopping has always been a happy place for me. I have sought solace in the late night opening hours of Oxford Street’s shops after a tough day at work. I have laughed uncontrollably trying on ridiculous outfits while meandering the shops with friends on Saturday afternoons. I have felt a rush of delight at finding the perfect outfit for a friend’s wedding.
No doubt many of you reading this will have heard about the ‘Attenborough Effect’, sparked by his two latest series, ‘Blue Planet II’ and ‘Our Planet’. Whilst these series have changed the way many of us think about plastic and have made us see that things have to change, it is important that we understand that we, as individuals, have to be part of that change. How?
The aim of this blog is not to point the finger and attribute blame to people who eat meat, mangos and Manchego. I myself am far from perfect, and am fully aware that I need to re-evaluate my relationship with cheese and stop eating so many avocados. What this blog is intended to do, however, is to make us all think about, and be aware of, where our food comes from, the impact that food production has on the environment, and what we should be doing to reduce that impact.
Emily Carter is lawyer living in central London with two small children. Although she knows a thing or two about the law, she is not an expert in the science of climate change or the answers to the current crisis. She has, however, been asking herself some questions
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