Saturday, 25 January 2014

The HS2 judgment - some background information

I have wrestled with the UK Supreme Court's judgments in the High Speed case - (see previous post and  - High Speed 2 Alliance v Secretary of State for Transport [2014] UKSC 3 - Press Summary ).  The judgments are not easy reading and they are inexplicable without, at least, some knowledge of matters such as the Aarhus Convention and two European Union Directives concerned with environmental protection:

Aarhus Convention and to EU Directives - (a) The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC and (b) the Environmental Impact Assessment (EIA) Directive - 2011/92/EU.

Although commonly used, the terms Strategic Environmental Assessment and Environmental Impact Assessment are not actually the correct titles of the directives.   They are, respectively, the "Directive on the assessment of the effects of certain plans and projects on the environment" and the "Directive on the assessment of the effects of certain public and private projects on the environment."

As is required
by European Union law, the directives were implemented into national law.  SEA was implemented for ENGLAND by the Environmental Assessment of Plans and Programmes Regulations 2004 and EIA was implemented in English law by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011.   The Supreme Court's judgment did not examine these implementing regulations in any detail and so they are not referred to further in this post.

The Aarhus Convention:



This Convention is an international treaty entered into on 25th June 1998 in the Danish City of Aarhus.  As of 7th January 2014 there are 46 State Parties to the convention and the UK ratified the convention on 23rd February 2005.   The Convention operates under the auspices of the United Nations Economic Commission for Europe (UNECE) and the full title of the Convention is "The 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters."

In relation to activities affecting the environment, Aaarhus therefore seeks to offer the citizen a right to information; a right to participate in decision making and a right of access to justice.  Clearly, the right of access to justice is one way of ensuring that public authorities operate within the convention.

The UK government has sought to rely on the existence of judicial review as the way in which access to justice is ensured.  This has been done at the same time as making judicial review more difficult for the citizen (see the articles at Out-Law.com and UKELA).   

The UNECE has a good short presentation about Aarhus and their website contains considerable information about it.   The text of the convention is also available.

In reading the convention, it is important to note that the term "public authority" is defined (Article 2) and it includes government but it does not include bodies acting in a judicial or legislative capacity.

Article 6 grants the public particular rights in relation to decisions on specific activities which are listed in an Annex to the Convention.  However, the rights in Article 6 also apply where decisions on proposed activities (not listed in the Annex) may have "A significant effect on the environment."

The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC:

The Strategic Environmental Assessment (SEA) Directive - 2001/42/EC.  The European Commission website contains much useful information about this Directive.  According to the website:

"SEA procedure can be summarized as follows: an environmental report is prepared in which the likely significant effects on the environment and the reasonable alternatives of the proposed plan or programme are identified. The public and the environmental authorities are informed and consulted on the draft plan or programme and the environmental report prepared ....................

The environmental report and the results of the consultations are taken into account before adoption. Once the plan or programme is adopted, the environmental authorities and the public are informed and relevant information is made available to them. In order to identify unforeseen adverse effects at an early stage, significant environmental effects of the plan or programme are to be monitored."

Article 3 of the Directive requires an environmental assessment (in accordance with Articles 4 to 9) for specified plans and programmes (including transport) which are likely to have significant environmental effects.

As will be seen on a reading of the HS2 judgment, the Directive has received the attention of the Court of Justice of the European Union (CJEU) on a number of occasions.  (The Supreme Court decided that it was not necessary to add to those occasions by making a reference to the CJEU)!

The Environmental Impact Assessment (EIA) Directive - 2011/92/EU:

The Environmental Impact Assessment (EIA) Directive - 2011/92/EU.  Again, the European Commission website contains information about this directive.   The website notes:

"Environmental assessment is a procedure that ensures that the environmental implications of decisions are taken into account before the decisions are made. Environmental assessment can be undertaken for individual projects, such as a dam, motorway, airport or factory, on the basis of Directive 2011/92/EU (known as 'Environmental Impact Assessment' – EIA Directive) or for public plans or programmes on the basis of Directive 2001/42/EC (known as 'Strategic Environmental Assessment' – SEA Directive). The common principle of both Directives is to ensure that plans, programmes and projects likely to have significant effects on the environment are made subject to an environmental assessment, prior to their approval or authorisation. Consultation with the public is a key feature of environmental assessment procedures.

The Directives on Environmental Assessment aim to provide a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation of projects, plans and programmes with a view to reduce their environmental impact. They ensure public participation in decision-making and thereby strengthen the quality of decisions ...."

However, Article 1(4) of this Directive states - "This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation, since the objectives of this directive, including that of supplying information, are achieved through the legislative process."

In the light of decisions of the CJEU, this cannot be taken at face value.  This matter is discussed in the Supreme Court's judgment.  For the moment it suffices to note what Lord Reed said at para 81 -

It might have been thought, in the light of that provision, that the Directive would not apply to the HS2 project if its details were adopted by a specific Act of Parliament. The Court of Justice has however given article 1(4) what might diplomatically be described as a purposive interpretation: in effect, "since" has been construed as meaning "provided that".

Note: Prior to EIA, the relevant directive was Directive 85/337/EC .  The EIA Directive dates from 13th December 2011.

SEA and EIA:

Both directives are clearly aimed at ensuring that environmental effects are taken into account from the earliest stages of planning.

SEA can be seen as "up-stream" and identifies the best options at the earliest planning stage.  SEA aims to prevent major effects on the environment being predetermined before the EIA stage is reached.

 EIA is downstream and refers to projects that are coming through at a later stage.

In Walton v Scottish Ministers [2013] PTSR 51, there is a detailed discussion of the evolution and general purpose of the relevant directives.  In that case, it was argued that Ministers had failed to comply with the requirements of the Strategic Environmental Assessment Directive in connection with a road scheme near Aberdeen.  The UK Supreme Court dismissed the appeal.

The government's Paper: Decision making and next steps:

High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8257, 10th January 2012).

This paper - referred to as DNS in the Supreme Court's judgment - was the subject of challenge.  A question for the Supreme Court was - Did the DNS constitute a "plan or programme" for the purposes of the SEA Directive?  

The Hybrid Bill:

The Bill may be read here.  See also my previous post about this Bill.   A question for the Supreme Court was whether the Hybrid Bill procedure in Parliament met the requirements of the EIA Directive.

Other issues for the Supreme Court:

1. Whether the court should intervene at this stage or await the completion of the parliamentary process.  It was decided that intervention was permissible and appropriate - see Lord Reed's judgment at paras 93 to 97 and note para 94:

"The principal advantages of considering the appellants' contentions at the present stage are practical. It is not in dispute that the Parliamentary procedure will be costly and time-consuming. It is plainly convenient to have the point of law as to the effect of the EIA Directive, as a matter of EU law, decided before further time and expense are incurred on the basis, if the appellants are correct, of a mistaken understanding by Government."

2.  Whether to make a reference to the CJEU.  The court decided not to do this for reasons set out at some length by Lord Sumption - paras. 119 to 129.  See also the judgments of Lady Hale at 154 and 155 and Lords Neuberger/Mance at para 188.

Endpiece:

Lady Hale noted - at para 130  - that:

"There has never been a full environmental assessment of HS2 as against the alternative ways of developing the railway system, including ways which do not involve constructing new railway lines capable of carrying trains travelling at 250 miles per hour, such as the so-called "optimised alternative" favoured by the 51M, the body to which the local authorities involved in this case (and others) belong."

and at para 139 she commented that:

"The bill is accompanied by a massive environmental statement (apparently designed to comply with the requirements of the EIA Directive, should this be necessary)."

The environmental statement is open for consultation until 27th February 2014.

Next week, I hope to return to the judgment to look at precisely why the challenges failed in the Supreme Court.  The judgment of Lords Neuberger and Mance contains some interesting comments (or dicta) which may, in the future, fall to be considered more fully by the court.

 




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