Environment and human rights – new case law


On 21 September 2021, Mr Justice Fordham handed down an important and comprehensive judgment in R (Matthew Richards) v the Environment Agency [2021] EWHC 2501 (Admin), which concerned the intersection between environmental issues, particularly pollution, and human rights.


Facts


The Claimant, Matthew Richards (‘Matthew’) is a vulnerable 5 year-old with respiratory issues who is particularly affected by hydrogen sulphide emissions (the ‘emissions’) from a landfill site, which sits next to his home in Staffordshire and which is operated pursuant to an environmental permit issued by the Environment Agency (‘EA’).


The emissions have been described by Mathew's consultant paediatrician Dr Sinha as a public health emergency. They have also placed the local community in crisis and living in unbearable conditions.


Matthew challenged the EA’s alleged failure to protect his respiratory health from the local landfill site. The landfill owners, the Walleys Quarry Landfill Site (‘WQLS’), joined as an Interested Party. Matthew argued that the Court should make declarations that the EA's failure to take measures necessary to protect him is a violation of his human rights.


In legal terms, the case was about whether the EA is discharging its statutory duty under section 6 of the Human Rights Act 1998 to protect Mathew's Article 2 right to life and his Article 8 right to respect for private and family life and its public law duties at common law to act reasonably and take reasonable steps to acquaint itself with relevant information.


Judgment


The court addressed two critical issues in its judgment:

a. Whether positive operational duties were triggered; and

b. The content of those positive obligations in this case.

Fordham J confirmed that positive operational duties were triggered in respect of both Article 2 and 8.


Fordham J stated that he did not find a present breach, and instead he identified what was needed. He set out a specific form of declaration, which was as follows (at para 64)


In order for the Environment Agency to comply with its legal obligations, the Agency must implement the advice of Public Health England as expressed in the Fourth PHE Risk Assessment (published 5 August 2021), by designing and applying and continuing to design and apply such measures as, in the Agency’s regulatory judgment, will and do effectively achieve the following outcomes in relation to emissions of hydrogen sulphide from Walleys Quarry Landfill Site: (1) the reduction of off-site odours so as to meet, as early as possible and thereafter, the World Health Organisation half-hour average (5PPB); and (2) the reduction of daily concentrations in the local area to a level, from January 2022 and thereafter, below the US EPA Reference Value (1PPB) as the acceptable health-based guidance value for long-term exposure.”


Comment


This is a significant decision for anyone concerned with securing practical and effective human rights safeguards in relation to the environment.


There are a number of striking features to it that are worth drawing out.


Firstly, Fordham J accepted that the current level of emissions are shortening Matthew’s life expectancy, because those emissions would cause him to develop Chronic Obstructive Pulmonary Disease (and the court accepted that the hydrogen sulphide levels make any recovery impossible).


Secondly, he confirmed that a shortening of life expectancy can be considered a ‘real and immediate risk to life’ for the purposes of satisfying the test for engagement of the Article 2 operational duty[1]. Fordham J stated at paragraph 52:


I find it difficult to conceive that Article 2 would apply to a real and immediate risk of a methane explosion which would mean employees all in their 40s and 50s would be killed, but would not apply to the real and immediate risk of a nuclear leak which would mean local children would get cancer reducing their life expectancy so that they would in due course die in their 40s or 50s


Thirdly, the court stressed the fundamental maximum of the ‘margin of appreciation’ which has its domestic equivalent when ‘the domestic judicial authority is supervising the actions of the domestic administrative authorities’ (para 51). This orthodox reading is not based on doing ‘everything that it can’ (even in a public health emergency) as it is recognised “that there may be a choice of means and that the positive duty may be capable of fulfilment by alternative means” (para 51).


Fourthly, Fordham J confirmed that the experience of a local community is relevant in respect of Article 2 and 8 cases. This is firstly in considering whether the effects – here of pollution – have reached a minimum level, secondly, in considering whether a ‘fair balance’ has been struck between the victims’ interest and the public interest, and, thirdly, in considering whether ‘reasonable steps’ have been taken.


Fifth, and invaluably, Fordham J reviewed over thirty years of relevant Strasbourg case law in this area and in particular five decisions[2] and set out some propositions which can be derived from them. He distinguished environmental cases involving Article 2 and/or Article 8 ECHR rights into “looking back” cases and “in the moment” cases. Among the Strasbourg cases, only Fadeyeva v Russia (2007) 45 EHRR 10 (concerning ongoing pollution from a Russian steel plant) was an “in the moment case”.


As will be well known to practitioners, when the positive operational duty under Article 2 is triggered, it is the duty of the state authority to take measures within the scope of its powers, which, “judged reasonably” and in the circumstances of the case, might be expected to avoid the risk to life.


In this judgment, that duty is described as “the reasonable steps duty”. Fordham J noted: “[c]aution is one thing. Abdication is another” (at 50). Caution means that the court must “[ask] itself “in the moment” whether there is an identifiable content to an applicable positive operational duty and, if so, give such remedies as ensures that the duty is being complied with”.


Lastly, the hearing itself was procedurally remarkable as it involved the rare step (in JR proceedings) of ‘hot tubbing’ of experts (i.e. hearing their evidence concurrently, pursuant to CPR PD 11.1-11.4), which Fordham J said gave him real assistance.


Although Matthew was successful, Fordham J ordered the EA to pay one-third of his costs, bearing in mind the nature of the declaration made. Fordham J refused the EA permission to appeal. It is not clear if the steps being taken by the site and EA are reducing hydrogen sulphide emissions from WQLS to the levels now recommended by Public Health England.


This article was written by Daniel Lemberger Cooper of Imran Khan and Partners Solicitors, specialist human rights and civil liberties lawyer.


[1] Before this case, the key case in the area that considered the shortening of life expectancy, and whether it could engage the Article 2 operational duty was Watts v UK (App. No 53586/09). [2] Namely Lopez Ostra v Spain (1995) 20 EHRR 277 (9.12.94), Oneryildiz v Turkey (2005) 41 EHRR 20 (30.11.04, Grand Chamber), Fadeyeva v Russia (2007) 45 EHRR 10 (30.11.05), Budayeva v Russia (2014) 59 EHRR 2 (20.3.08), Brincat v Malta Application No.60908/11 (24.7.14), [2014] ECHR 836

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