Prohibitively high costs are pricing individuals and community groups out of bringing legal challenges in England and Wales to protect the environment, major NGOs say.
A joint report by the RSPB, the Environmental Law Foundation (ELF) and Friends of the Earth England, Wales and Northern Ireland, says cases raising concerns about loss of green space, wildlife habitat and the climate crisis have been abandoned because of fears about costs, even when they have good prospects of success. It suggests the number of environmental judicial review applications may have halved in a decade.
The authors say this is a result of changes to rules around legal costs in recent years, which allow defendants and interested parties – often the developer promoting a scheme or project – to apply to increase the default caps in environmental cases. In a case brought by ClientEarth, for example, its cost cap was increased from the default of £10,000 to £25,000.
Katie de Kauwe, an environmental lawyer at Friends of the Earth, said: “Our legal system provides an important means to check the abuse of state power. It is through taking a legal challenge that Friends of the Earth and sector allies established last year that the government had breached the Climate Change Act.
“It is therefore deeply concerning that individuals and community groups are sometimes prevented from taking strong environmental cases because of the cost risks of doing so. Justice should not be a privilege for those who can afford it; it should be a right for everyone.”
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The default caps make unsuccessful individuals in environmental cases liable for up to £5,000 of the legal costs of the public authority they are challenging. Community groups and NGOs pay up to £10,000. The report, published on Wednesday, says that by allowing the caps to be raised, the government is creating risk and uncertainty which many claimants may be unwilling to bear, despite their cases being in the public interest.
The UK government has been found to be in breach of the Aarhus convention, an international environment rights agreement which requires that legal action should not be “prohibitively expensive”.
Carol Day, a consultant solicitor for the RSPB, said: “Everyone should have the right to seek justice and have their voice heard when an issue needs investigation. The Aarhus convention seeks to ensure that legal action is not confined to those with the deepest pockets, but this report shows that more must be done to enable people to hold public bodies to account on issues such as air and water pollution, biodiversity protection and climate change.”
The report’s authors also say there has been a recent decline in success rates for environmental cases, and while not drawing firm conclusions, they say there is anecdotal evidence that the courts are becoming more hostile to such proceedings.
Their recommendations include adopting the same costs model as Northern Ireland, where the default cap can be varied downwards but not upwards, providing claimants with certainty as to their legal bill.
A Ministry of Justice spokesperson said: “It is misleading to suggest reforms have impacted the ability to bring successful environmental judicial reviews, which have remained steady in recent years.
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“We remain committed to the Aarhus convention and reviewing the environmental costs protection regime.”
This story was amended on 28 June 2023 to make it clear that it relates to England and Wales, not the UK as a whole. The headline and body of the story have been corrected.