Journal of Environmental Law Advance Access originally published online on February 21, 2008
Journal of Environmental Law 2008 20(1):8-10; doi:10.1093/jel/eqm050
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Has Environmental Law Become Humdrum?
University of Salford
Perhaps the only noteworthy quality of my contribution to this journal's first issue, ‘Radiological Risks and Civil Liability’, was that it predated Hope v BNF plc (the unsuccessful attempt, in the High Court, to link juvenile leukaemia to paternal pre-conceptual irradiation during employment at the Sellafield nuclear plant). It did, however, refer to a number of the epidemiological studies which were later to prove such a formidable obstacle for the plaintiff in that case, which was, in hindsight, a far more reputable example of ‘science in the courtroom’ than many (especially those involving the alleged effects of the drug Bendectin) which had earlier been heard in various US jurisdictions. Epidemiological evidence and the complexities of probabilistic causation were to raise their ugly heads again in litigation in which cancer victims of occupational exposure to asbestos were ultimately (following the House of Lords’ ruling in Fairchild) more successful. But the Sellafield litigation did not undermine the main point of my article viz. that civil liability was unlikely to be a useful remedy for those who claim that their cancer resulted from environmental exposure to ionising radiation. Of course, Cambridge Water v Eastern Counties Leather plc was later, and more emphatically, to demonstrate that strict liability was far less applicable to pollution cases than most authors of environmental law textbooks had fondly believed. More recently still, the case law of the European Court of Human Rights has, following Lopez Ostra v Spain, persuaded some lawyers, both practitioners and academics, that human rights law might be more effective than tort in securing redress for those whose domestic life has been blighted by odour, noise or some other environmental threat. The ‘environmental rights’ movement, or at least its UK branch, suffered a severe setback in the Marcic case, where the House of Lords showed that the spending plans of the utilities could not be lightly laid aside even though certain individuals were experiencing severe nuisance resulting from overloaded infrastructure (sewerage in this instance).
My 1989 article was in fact prompted by what must have been one of the earliest judicial reviews brought by an environmental pressure group to challenge a ministerial decision (in this instance, approving radioactive discharges from the proposed Sizewell B nuclear power station). If the last 20 years has seen the waning of civil remedies in matters environmental, then the waxing of public law approaches has been truly remarkable. To the point that actions by NGOs—such as Greenpeace's latest success in persuading the English High Court that the Government's consultation procedures in relation to the White Paper on energy production (nuclear, in particular) were inadequate—now go largely unnoticed by the general public. But the role of law within the continuing nuclear debate remains a minority interest; most environmental lawyers are interested in more general issues. I suspect that far more pages of this journal have been devoted to the protracted struggle by which UK courts have come to appreciate that the directives on environmental impact assessment are to be seen, not as a foreign interloper in the long established procedures of development control, but as setting out minimum requirements for ensuring active public involvement when approval is sought for the most controversial changes in land use. (John Alder's article (1993) 5 JEL 203—on the judge's misunderstanding of the first EIA directive in the judicial review of the transport secretary's (Cecil Parkinson) approval of the M3 extension through Twyford Down—still makes interesting reading.) In fact, various disputes over environmental directives have added to the voluminous case law by which ‘direct effect’ and ‘indirect effect’ have emerged as principles of European Community law. Many would point to ‘polluter pays’ and ‘precaution’ as more important, since these are principles that form the basis of a distinctive EC approach to environmental law and policy.
But quite apart from any particular development in environmental legislation, whether domestic or European in origin, perhaps the most striking change over the past twenty years is the extent to which environmentalism has become part of the political orthodoxy. In 1982, Margaret Thatcher described her environmental responsibilities as ‘humdrum’. She was looking for an example to contrast with the rare excitement that came with her decision to recover the Falkland Islands. But her remark did reveal that concern for the environment was no longer the exclusive reserve of green protesters but part of the day-to-day business of government. When the world's best known climate change campaigner wins the 2007 Nobel Peace Prize, something fundamental has surely happened. And it was one of his critics, a certain Mr Dimmock, who recently failed to persuade the High Court that Al Gore's Oscar-winning film ‘An Inconvenient Truth’ was too scientifically flawed to be shown in secondary schools. So the ‘science in the courtroom’ debate has moved on from dubious epidemiology to meteorology, oceanography and other, equally ‘hard’ sciences. How then did Mr Justice Barton identify those scientists who could give the ‘true’ account of, for example, the consequences of the melting of the Greenland icecap? And by what criteria did he discount the claims of those whom environmentalists would like to compare with flat-Earthers? At the outset of my teaching career, I urged students to read ‘The Doomsday Syndrome’ written, in 1972 by John Maddox (who, as Editor of Nature, was unquestionably a pillar of the scientific establishment) as a critique of the then influential ‘limits to growth’ school and chiding environmentalists for their inability to understand the capacity and ingenuity of contemporary science to combat resource depletion, pollution and related ills. I still feel a need to discourage too complacent an acceptance of the orthodox, whether in environmental or any other area of political debate. So, when I next revise my reading list, Bj
rn Lomborg's works will be included but not, I think, under ‘essential’ reading.
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