This is the 200th edition of the Bulletin [of the Encyclopaedia of Environmental Law]. The previous 199 are sitting on my shelves as I write. Bulletin Number 1 was published in January 1994, nearly 20 years ago. At that stage I was sole editor and author, a solitary state which I retained until Bulletin Number 20 in November 1995 when I was joined by my then colleague Mike Nash as Assistant Editor. It is striking to think that in those early years there was no access to legal materials on the internet, and indeed for a long time the Bulletin was written out in long hand and given to a copy typist.
Issue 1 focused on the decision of the House of Lords in the Cambridge Water case, reversing the decision of the Court of Appeal and holding that Eastern Counties Leather was not liable to Cambridge Water Company for the contamination of its borehole caused by spillages of chlorinated solvent at ECL’s factory. The Government had issued a consultation on interpreting the definition of “waste” (some hope) with its proposed test of whether the substance or object was “no longer part of the normal commercial cycle or chain of utility”. The integrated pollution control (IPC) system was being fine-tuned, whilst the European Commission’s proposal for a Directive on integrated pollution prevention and control (IPPC) had just been published in the Official Journal.
By Issue 2 in February 1994 the Government had published four strategy documents responding to the Rio Summit, which included the UK Strategy on Sustainable Development, the UK Programme on Climate Change, and the UK Action Plan on Biodiversity. “Red tape” is an evergreen issue in environmental law, and the Deregulation and Contracting Out Bill had been published with a general order-making power to repeal or amend burdensome legislation. The Environment Agency had not yet been conceived, and its aqueous predecessor, the National Rivers Authority, had just published a customer charter and mission statement, including a rudimentary prosecution policy.
In Issue 3 the Bulletin made a welcome change from the rather unpleasant shiny white paper on which it had entered the world, to its current pale blue. The main item on its menu was the March 1994 Consultation on contaminated land, “Paying for Our Past” which morphed into what became Part IIA of the Environmental Protection Act 1990, beloved of environmental lawyers everywhere.
And so it went on. As those who have read so far will appreciate, many of the themes of environmental law which have flowed down the years were already developed, or at least developing, in those early days of the Bulletin. Since then environmental law has obviously developed enormously in scope and complexity, and environmental law as a profession likewise. The biggest change, in this Editor’s view at least, has been the volume and importance of EU legislation which has emerged from Brussels and now underpins almost every conceivable area of domestic law. Lawyers and courts have become much more familiar with EU Directives and their interaction with our own statutes, and more comfortable about submissions based on sympathetic interpretation, direct effect, etc. That is not to say that they are always deferential or respectful to the approach of the Court of Justice of the EU in providing guidance (or not) on matters such as the meaning of “discard” in the definition of waste, or that they are always as responsive as some might like in giving effect to the principles and purposes of EU environmental law.
But that aside, whilst the world we live in has been massively transformed in many respects since 1994, the basic skeleton of environmental law has not fundamentally changed – the tasks are still to control industrial emissions, to ensure waste is minimised and dealt with responsibly and sustainably, to achieve good standards of air and water quality, to safeguard the environment and people against adverse impacts of development, to protect and improve the status of important habitats and wildlife species, to reduce anthropogenic emissions of greenhouse gases into the biosphere, and so on. All of these have been the subject of major efforts since 1994, to develop law, to drive improvements through new technologies, and to raise corporate and public awareness. It has yielded, in some areas, impressive results, though at a cost.
Beaches and rivers are generally much cleaner than they were 20 years ago, the worst polluting coal fired power stations have closed, the standards of landfill sites have improved out of all recognition, the volume of waste going into them has inexorably decreased, much more energy is generated by renewable sources, and many seriously contaminated sites have been cleaned up (albeit largely through voluntary market approaches rather than statutory compulsion). There has been experimentation with market and financial mechanisms – some highly effective such as the landfill tax, others lamentably ineffective, such as the EU emissions trading scheme. There has been a substantial focus on energy, as is commensurate with the drive to lower carbon emissions, so that many environmental lawyers have de facto become energy lawyers. A new and strong focus in the last 10 years has been on the marine environment, previously a very neglected area, and one where considerable effort is still needed.
Another big improvement has been in the areas of public information and participation. It is hard to believe how restricted was the public’s access to environmental information during the 1980s and early 1990s. Freedom of information legislation, coupled with huge advances in information technology, has changed all that. People are generally better informed and consulted, but of course that does not mean that they are happy with decisions on matters such as new wind farms, energy-from-waste facilities, or the latest bogey of fracking. The only recourse such people or groups may ultimately have is through the courts. There has rightly been a close scrutiny in the last few years of the requirements of the UNECE Aarhus Convention on public access to information, participation, and access to justice. The UK still has a long way to go in ensuring that there is adequate access to justice in environmental matters, perhaps further than ever as the Jackson reforms on costs introduced in April 2013 begin to bite. It is also interesting to note that whilst 20 years ago, particularly after Cambridge Water, many might have questioned what role remained for the common law, with as Lord Goff put it, “... so much well-informed and carefully structured legislation being put in place”. In fact, the last few years have seen a revival in claims in private nuisance where local residents perceive that their complaints to environmental agencies are being disregarded, or that inadequate regulatory control is being exercised.
Environmental law has its limitations, of course. Much more can be and often is achieved through individual, corporate or commercial decisions, by peer pressure or by financial self-interest. Yet environmental law forms the essential backcloth to the decisions made by investors, industrialists and insurers which really shape the environment. If the law is right, then it will encourage right decisions.
What about the next 20 years? I think it has become apparent that the environmental problems we face are not going to be capable of being solved by the legislation of a small island on the edge of Europe. Nor indeed are they going to be solved by the legislation of the EU. We live in a century which will see the financial dominance of Europe and the West steadily replaced by that of new economies, which will face environmental challenges dwarfing anything experienced here even in the dark ages of environmental law. What environmental lawyers in the UK will be able to do about that is minimal. Environmental lawyers are going to have to learn to work together globally if a set of legal rules is going to be forged which will be fit for purpose in the new global economy. That is the challenge of the next 20 years, for the next generation.