A challenge by Friends of the Earth, RSPB and ClientEarth against the government’s new environmental justice rules has been fast-tracked to the High Court.
The three charities launched the case after the UK government has introduced new rules which they say make it “almost impossible to bring an environmental case in the public interest”.
A High Court judge, Mr Justice Dove, fast-tracked the case because the rules are already having an impact. He also granted a total cost cap of £10,000 for the three charities combined.
ClientEarth, a charity formed by activist lawyers, said the new rules would have a “massive chilling effect on cases brought to protect people and the environment”.
The government was given 21 days, instead of the usual 35, to file its defence, the deadline of which falls on 11 May. ClientEarth, Friends of the Earth and the RSPB have seven days to reply, then a hearing date will be set. It is expect to take place in around six months' time.
James Thornton, ClientEarth’s chief executive, said: “People must be able to go to court to defend their environment. The government’s new rules cynically undermine this right. By fast-tracking our case and protecting us from debilitating legal costs, the judge has clearly signalled the importance of our challenge to the government.
“These new rules are a disaster for the environment. Faced with the risk of almost unlimited costs, who would put their finances, maybe even their house, on the line? People and charities need financial certainty before they bring a case to protect people and the planet. After Brexit, this will become even more important, because the EU won’t be able to hold our government to account.”
ClientEarth says the rules, which came into force on 28 February, expose campaign groups to prohibitive costs.
This is because the new rules weaken financial protections for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. Judges will be able to increase the costs cap at any stage, making it impossible to know how much a case will cost from the start.
The cost changes were also criticised by a UN committee, which said in a report that the government was not yet meeting its legal obligations on access to justice under the Aarhus convention.
‘A basic democratic right’
William Rundle, lawyer for Friends of the Earth, said: “It should be a basic democratic right that citizens can challenge their government when it is breaking the law. The government’s new rules make this potentially so expensive, that it is very likely to price some people out of justice altogether. If defending the environment is more about your income than the strength of your arguments, communities will be powerless to stop bad decisions by public authorities from damaging nature.
“We’re pleased that the courts have recognised the importance of our case, and that the government’s new rules will now be reviewed by a judge.”
A spokesman from RSPB said: “People must be able to challenge their government when they think it is breaking the law. This is a basic democratic right. The new rules intentionally undermine this right, potentially making it so expensive that most people will be priced out of justice altogether.
“Faced with the risk of almost unlimited costs, who would put their finances, maybe even their house, on the line? Defending the environment should rely on the strength of your legal arguments, not the money in your pocket. Individuals, community groups and charities play a vital role in protecting the environment and they need financial certainty before taking a case to court. After leaving the EU, it will be even more important that people can use the UK courts to hold our government to account.
“By fast-tracking our case and protecting us from debilitating legal costs, the judge has clearly signalled the importance of our challenge to the government.”
New rules 'desirable'
The Ministry of Justice said that due to Purdah restrictions it was limited in its response to a request for comment. However it directed Civil Society to a written question asked by Kerry McCarthy, MP for Bristol East, on the "effect of the proposed changes to cost protections in environmental claims on (a) the number of environmental judicial review applications, (b) the proportion of successful environmental claims and (c) the UK's compliance with the Aarhus Convention and EU law."
Answering this, Minister of State Oliver Heald replied: "An impact assessment accompanied the government’s response to the consultation on Costs Protection in Environmental Claims in England and Wales, published on 17 November 2016. A revised environmental costs protection regime will be introduced shortly. The new regime, which has been developed in the light of recent developments in case law, allows meritorious claims to be brought without prohibitive expense; it is clearly desirable to reduce the potential for unmeritorious claims".
A spokeswoman emphasised that Legal Aid remains available for these cases.