Environmental Law and Citizen Action

Alan Murdie

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134059737
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Ideologies
• Index: Politics & International Relations

Never before have people been so aware of the importance of sound environmental law, as every week stories of controversial planning developments and prosecutions for the release of toxic substances feature in the news.

Environmental Law and Citizen Action sets out and explains the ways that ordinary citizens can use the law to ensure the environment is protected. There are a number of existing UK laws which require local authorities to control pollution and protect the environments and many more which can be used to tackle environmental offenders, yet often local government officers themselves are unaware of the full scope of their powers. Writing in a clear, accessible style, Alan Murdie explains how to get access to the relevant information, participate in public enquiries, use the courts to challenge public and government bodies and prosecute polluters. This book maps a path through the intricate legal maze to show what rights every citizen has, and how those rights can be enforced. Alan Murdie is a barrister with long-standing interest and involvement in local government issues, and a lecturer at Thames Valley University. He is co-author of To Pay or Not To Pay, a best-selling analysis of the poll tax debate, and has contributed to a wide range of legal and government periodicals. Originally published in 1993

Chapter 1

The Environment, the Citizen and the Law

ROLE OF THE INDIVIDUAL CITIZEN

In the face of global environmental problems, it is all too easy to feel powerless. Even in their own neighbourhoods many people feel there is little they can do to stop the relentless pace of environmental destruction or force the authorities into taking action to prevent pollution. ‘Think globally – act locally’ has long been a slogan of environmental and ‘green movements’ – but how can the individual citizen take action to stop environmental harm? One option, as this book seeks to show, is through the law. An oft quoted phrase, used in many contexts, is ‘There ought to be a law against it’. When it comes to harming the environment there frequently is.

This book seeks to provide a guide to those laws which exist to protect the environment and to outline ways in which the individual citizen can use them. Far from being powerless, every citizen may invoke a wide range of laws – providing they have access to the right information and a knowledge of the practical steps involved.

The rights that are available to individual citizens are an increasingly important part of the growing body of environmental law. Recent legislation, introduced by the British Government and arising from the UK’s membership of the European Community, gives every citizen new rights of access to environmental data held by public bodies. Much hitherto secret environmental information is now made open to public scrutiny for the first time.¹ There are also extensive new opportunities for the public to become involved in local decisions which cover a whole range of environmental issues, going far beyond voting in local elections. These are major developments which would have seemed unimaginable a decade ago² when the environment was likely to be dismissed as a fringe issue and largely the preserve of eccentrics, cranks and victims of the NIMBY – not in my back yard – syndrome.

The notion that ordinary citizens should use the law to protect the environment is no longer even a radical one, having been endorsed at the highest level by the British Government. In This Common Inheritance – First Year Report (a summary of progress on environmental goals first set out in 1990), Prime Minister John Major expressed the view that the protection of the environment is not a matter for the State alone but one in which citizens are to become partners.³ Nor is this mere political rhetoric by government, since it is backed up by legal changes which place individual citizens in a better position than ever before to have an influence in matters ranging from town and country planning to genetically modified organisms.⁴

These developments build upon a body of existing constitutional and legal rights which, though in many cases originally devised to cover non-environmental matters, may nonetheless be taken up by the individual citizen and used to protect the environment. These include a system of private rights (part of the civil law) by which an individual can protect his/her person and property, and various parts of the criminal law covering anti-social activities normally controlled and punished by the State, but which may also be utilised by private citizens. A third category is a body of administrative rules under which the individual can challenge the decisions and actions of public bodies and Government Ministers through the courts.

THE SCOPE OF THIS BOOK

In this book the ‘citizen’ of the title includes not just the ordinary citizen but any person employed as a local authority environmental health officer, an inspector with Her Majesty’s Inspectorate of Pollution (HMDP), the National Rivers Authority or any other person engaged in enforcing environmental legislation. The main bodies and their role in the creation and enforcement of environmental law are discussed in Chapter 2.

Constitutionally, the status of public officials in law is that of ordinary citizens who are paid to carry out certain functions which anyone with the time, resources and inclination might undertake.⁵ Whilst the law gives wider powers, such as rights of entry, search and seizure to such officials, those carrying out their tasks must nonetheless act within the framework of existing law and are subject to the same limitations and rules when enforcing legal obligations through the courts as anybody else.

This book primarily covers legal rights that may be used through the court system in England and Wales, although the basic provisions of many pieces of legislation, such as the Environmental Protection Act 1990, will apply with minor variations in both Scotland and Northern Ireland, as will measures which originate from the EC. Some rights – such as those for access to environmental information – can actually be used by non-UK citizens resident anywhere in the world (see Chapter 2). Furthermore, there is normally no restriction on a non-UK citizen commencing an action through the UK courts.

WHAT IS ENVIRONMENTAL LAW ?

This book does not set out to define what constitutes or should constitute environmental law, not least because it is a developing area. The subject cuts across so many fields and disciplines that ultimately no two experts – not only in the law but in other fields – are ever likely to agree at any one time. For the purposes of this book, environmental law is treated as laws and rules of law which exist to prevent or reduce harm to the natural environment.

From section 1(2) of the Environmental Protection Act 1990 comes a legal definition of the environment as

‘all, or any of the following media, namely, the air, water and land; and the medium of air within buildings and the air within other natural and man-made structures above or below ground.’

Under section 1(3) ‘pollution of the environment’ is defined as

‘the release (into any environmental medium) from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment’.

Environmental law in English history

The laws which protect the environment have not suddenly appeared from a legal vacuum. Measures to curb pollution of water, air and land have been around since well before the Industrial Revolution. Twentieth century problems such as water pollution and excessive water abstraction (see Chapter 9) were recognised problems in medieval times. Locally enforced laws, operating on a village level, limited the abstraction of water by individuals from common streams and rivers in order to preserve the flow level in the interests of the whole community.⁶ Persons guilty of fouling common water supplies were subjected to fines. The dumping of waste in common streets could also attract a fine – one notable offender being Shakespeare’s father, prosecuted for allowing a dung-hill to accumulate outside his house in Stratford in 1584.⁷ The private right of a citizen to take action against what are today classed as environmental nuisances has been recorded from at least 1607 when Aldred’s Case (see Chapter 6) endorsed a traditional right to enjoy clean air.

Attempts to control smoke pollution are recorded from at least 1307, and both Queen Elizabeth I and her successor James I had to issue ordinances prohibiting the burning of sea-coal while Parliament was sitting. By 1661 the subject of air pollution in cities could even boast a book, Fumi Fugium by John Evelyn, covering possible solutions to diseases arising from smoke and fumes.⁸

Varied though the pollution problems facing communities prior to the Industrial Revolution may have been, they could largely be tackled through a system of private rights –some of which still exist to this day in civil law. State intervention was only an occasional necessity, but with the rise of industrial society from the eighteenth century onwards, new systems of pollution control became necessary. Increasing urbanisation and overcrowding in towns and cities generated problems that could not be kept in check by a system of private rights. From the early Victorian era onwards specific legislation had to be passed by Parliament to protect the human environment. Thousands were dying from typhus and tuberculosis arising from overcrowding, unsanitary conditions and polluted water supplies. Pollution from smoke had become increasingly worse, with the French Ambassador recording in 1822 the ‘immense skull-cap of smoke which covers the city of London/ and of Tlunging into the gulf of black mist, as if into one of the mouths of Tartarus…’.⁹ The increased use and production of chemicals added many new and noxious compounds to the already filthy air, often with damaging effects on the landscape and human health. In particular, chemical production of soda generated acid as a byproduct, giving rise to acid rain in its most simple form. By 1862 large tracts of country had been blighted by acidic deposits.¹⁰

In an attempt to tackle these problems, various Public Health Acts were passed from the 1840s onwards and the 1860s saw efforts to control smoke and industrial discharges under the Alkali Works Act 1863.The Rivers Pollution Act was introduced in 1876and law on the pollution of water had already become sufficiently complex by 1897 to warrant an entire text book.¹¹ Unfortunately, the Rivers Pollution Act was seldom used having been weakened by political lobbying over the 80 years until its repeal in 1951, so that Prime Minister Attlee could describe river pollution as a national scandal in 1946.¹²

The main aim of this legislation was to preserve human health: pressure from public opinion (such as it existed) did not demand the protection of the wider environment as is the case today. But it is from this point in history that one can discern people beginning to consider the natural world as worthy of legal protection in its own right. As early as 1810 William Wordsworth argued that the Lake District should be considered ‘…a sort of “National Property” in which every man has a right and interest who has an eye to perceive and heart to enjoy it.’ However, such far-sighted sentiments had to wait until later in the nineteenth century when the interest in natural history gained momentum.

However, it is only since the end of the Second World War that it has generally been considered wrong in itself to damage the environment and that a variety of legal areas such as pollution control, planning law and nature conservation might all be part of a wider but unified discipline that can be termed ‘environmental law’.

In the past, the lack of any common perspective meant different pollution controls were never connected with each other in either their design or practical operation. Different enforcement bodies such as environmental health officers, planning authorities, the Alkali Inspectorate and water authorities tended to operate quite independently without any reference to each other and ignoring pollution which did not fall within their remit.¹³ It is only with the passing of the Environmental Protection Act 1990 (EPA) that this fragmented system of controls has now begun to be properly rationalised and integrated. The Act clearly defines which State bodies are responsible for controlling particular forms of pollution and for preventing harm to the natural environment, laying down the basic framework for pollution control which is intended to operate in Britain well into the next century.¹⁴ The new system of regulation covering potentially polluting industries came into force on 1 April 1991 and is outlined in Chapter 3. A complex system of licensing and authorisation is established, administered by local government and State bodies with many details contained in a system of public registers where individual authorisations can be consulted, supporting the rights to environmental information detailed in Chapter 2.

In addition to the EPA, there are a number of other Acts passed over the years and particular rules of law operating today to achieve a number of important environmental goals.

Functions of the law

The law currently exists to:

• set standards and safeguards which individual persons, corporations, and governments must observe and adhere to regarding emissions and releases of substances into the environment.

• provide rights of access to environmental information held by public bodies.

• give rights to citizens to participate in the decision making process concerning...

Table of contents

• Cover Page
• Half Title page
• Full list of titles in the set
• Title Page
• Copyright Page
• Original Title Page
• Contents
• Original Copyright Page
• Preface
• Chapter 1 The Environment, the Citizen and the Law
• Chapter 2 Enforcing Environmental Law
• Chapter 3 Sources of Legal Information
• Chapter 4 Prosecuting Environmental Crimes
• Chapter 5 Judicial Review – Challenging the Decisions of Public Bodies
• Chapter 6 Civil and Private Law
• Chapter 7 Planning and the Built Environment
• Chapter 8 The Atmosphere
• Chapter 9 Water Pollution
• Chapter 10 Waste and Hazardous Substances
• Chapter 11 Habitat and the Protection of Wildlife
• Appendix 1 Sources of Information
• Index