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Environmental Law

Environmental Law. Human Rights and Environmental Protection. Environmental Law. Council of Europe, European Convention on Human Rights and Fundamental Freedoms (ECHR) 1950 No express ‘environmental rights’ Universal need for environmental protection not apparent

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Environmental Law

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  1. Environmental Law Human Rights and Environmental Protection

  2. Environmental Law • Council of Europe, European Convention on Human Rights and Fundamental Freedoms (ECHR) 1950 • No express ‘environmental rights’ • Universal need for environmental protection not apparent • Environmental values evolved in response to societal change and public awareness • Stockholm Declaration on Human Environment 1972 • ‘Man has a fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being ...’ Principle 1

  3. Environmental Law • Article 8 ECHR • 8.1 Everyone has the right to respect for his private and family life, his home... • 8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... The economic well being of the country .. Or for the protection of the rights and freedoms of others

  4. Environmental Law • López Ostra v Spain, 9 Dec. 1994 (41/1993/436/515) • Emissions of polluting fumes, pestilential and irritant smells and repetitive noise from waste treatment plant • Plant operating without a licence etc. • ‘Naturally, severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health’

  5. Environmental Law • Guerra and Others v Italy, Grand Chamber, 19 Feb 1998 (116/1996/735/932) • Factory’s toxic emissions • Lack of essential information • Violation of Article 8 ECHR • Powell and Rayner v United Kingdom, 21 Feb 1990 (3/1989/163/219) (Unsuccessful – aircraft noise)

  6. Environmental Law • Confirmed in Hatton and Others v United Kingdom, Grand Chamber, 8 July 2003, Application no. 36022/97 • Increased aircraft night-time noise. • No violation of Article 8 ECHR • ‘Environmental protection should be taken into consideration by governments in acting within their margin of appreciation and by the court in its review of that margin, but it would not be appropriate for the court to adopt a special approach in this respect by reference to a special status of environmental human rights’ • Wide margin of appreciation

  7. Environmental Law • Human Rights Act 1998 • Dennis v Ministry of Defence [2003] EWHC 793 • Nuisance + obiter dicta Article 1 First Protocol (peaceful enjoyment of possessions) and Article 8 ECHR • Art 1 First Protocol + S v France, Application no. 13728/88 (1990) • Fair balance + compensation = proportionate • Award of damages under section 8 of HRAct1998 • Art. 1 First Protocol + Art. 8 ECHR

  8. Environmental Law • Marcic v Thames Water Utilities plc [2002] 2 All ER 55 (CA); reversed[2004] Env LR 25 (HofL) • Was statutory scheme of Water Industry Act 1991 ECHR compliant? • Lord Nicholls ‘ Whether the system adopted by a sewerage undertaker is fair is a matter inherently more suited for decision by the industry regulator than by a court’ • Applied Hatton II • The scheme of 1991 Act was not unreasonable in its impact on householders whose properties were periodically subject to sewer flooding • Lord Nicholls – Concerned. No statutory provision for external flooding

  9. Environmental Law • Article 2 ECHR Right to Life • Restrictive approach of ECtHR – not extended to protecting quality of life • Article 6 ECHR Right to Fair Trial • Procedural as opposed to substantive right • ‘The Court recognises for its part that in today’s society the protection of the environment is an increasingly important consideration’ ECtHRFredin v Sweden (1990) 13 EHRR 784 • Landowner unable to obtain judicial review of authority’s decision to prohibit him from extracting gravel = breach of Art. 6 ECHR

  10. Environmental Law • Article 10 ECHR Right to Freedom of Expression • Right to receive information • Guerra v Italy = failure by Italian authorities to provide local population with information about risks from chemical factory. State not in breach of Art 10 ECHR; freedom to receive info. Could not be construed as imposing positive obligation on State to collect and disseminate info of its own motion. • Art 10 ECHR+environmental protestors; proportionate • Public Access to Information on Environment

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