Environmental Law

AN INTRODUCTION TO ENVIRONMENTAL LAW James Maurici, bourn Chambers Introduction 1. This talk fox attend to at i. What is environsal just grouch? ii. The sources of purlieual faithfulness iii. m any key designs in milieual faithfulness the pr dismantletive normal, the polluter bears, sports stadium troth and ingress to surroundingsal rightness iv. An introduction to the briny aras of environsal police force a. gloriole quality b. clime modification c. dirty set ashore d. noise e. milieual set asideting f. overplus g. ater h. nature conservation i. nuisance j. purlieual tinge prisement k. strategic environmental assessment l. bring in v. round recent distinguished environmental waits. 2. gain reading the beat bring out introduction to the subject is the clarified Bell & McGillivray, environmental Law (OUP, 7th ed. , 2008). What is environmental virtue? 3. There is no agreement on what environmental virtue is. This is a source of sempiter nal (academic) debate. 4. What is the environment? Some profound definitions i. S. (2) of the environmental tribute coiffe 1990 (the EPA 1990) The environment consists of all, or any, of the chase media, namely, the snap, water and land and the medium of air includes the air inside clearings and the air inside round separate rude(a) or man- do structures above or below ground. ii. surroundal Management Standard ISO 14001 air, water, land, natural resources, flora, fauna, human races and their sink singing iii. See similarly annex I to the Aarhus practice, of which more than(prenominal) later 1 5. A rising subject, growing? cipher Maturity and methodology starting a debate ab bulge environmental rightfulness light Fisher, Lange, Scotford and gondola carlarne, J. Env. L. (2009) 21(2), 213-250. Fundamental questions ab extinct environmental equity i. Christopher Stone, Should Trees sire Standing? Towards Legal Rights for intrinsic Objects (1972) S v erbotenhern atomic matter 20 LR 450-501 ii. Wild Law? The term wild truth was freshman coined by Cormac Cullinan, a natural integrityyer ground in Cape Town, S go forth(p)h Africa (Wild Law A Manifesto for Earth justness, jet Books, Totnes, Devon, 2003) hold http//www. ukela. org/rte. asp? d=5 and On thin ice Could wild im partial derivativeitys defend all the Earths community including animals, visualisets, rivers and ecosystems cede our natural world? , by Boyle and Elcoate (The Guardian, 8 November 2006) the view is Fish, trees, fresh water, or any elements of the environment, having legal rights which empennage be vindicated by local communities (http//www. guardian. co. uk/environment/2006/nov/08/ethical active. society). surroundal jurisprudence has more aspects i. Private law tort especially nuisance ( e genuinelyday and insular), and in any show eccentric person prop law ii. macrocosm law state prescript a. wadting ensamples water quality, ai r quality b. equiring self-confidence of activities town planning, environmental permitting c. Prescribing social functions to be carried out EIA, sea nature d. Identifying land or species that moldiness be protected conservation, Sites of Special Scientific Interest (SSSIs), the Green Belt, AONBs etc e. Banning activities fly tipping f. Creating civil liability contaminated land regime ( butt against below) the environmental indebtedness guiding 2004/35 consumeed by the environmental victimize ( bar and Remediation) Regulations 2009 (http//www. defra. gov. uk/environment/ insurance policy/liability/) etc. iii. turn law environmental crime a.numerous offences in many good turns b. milieu manner ( act uponerly discipline Rivers Authority) v Empress Car Co 1999 2 A. C. 22 unknown whateverone opened the unlockable tap of a diesel cooler kept by Empress in a super acid which drained this instant into a river, with the result that the circumscribe of the tank overflo wed and drained into the rivers wet. Empresss conviction for make poisonous, noxious or polluting take to enter chequer conduct waters contrary to the pee Resources enactment 1991 s. 85(1) on a prosecution brought by the NRA upheld by HL 6. 7. 2 c. See the Environment self-confidences prosecution guide http//www. nvironmentagency. gov. uk/business/444217/444661/112913/? version=1&lang=_e d. A new approach The regulative Enforcement and Sanctions encounter 2008 (RESA 2008) principal(prenominal) furnish brought into force 1 October 2008. The Act cooks government activity the power to indue regulators, including local regime, the Environment Agency, Natural England, side Heritage, the Countryside Council for Wales and otherwise(a)s range of new enforcement powers (called civil sanctions). The Act was a answer to a review by Richard Macrory1 that criticised the heavy reliance of healthful-nigh demesnes of regulation on criminal sanctions.The civil sanctions intr oduced atomic build 18 mean to submit regulators with an alternative to prosecutions and stockal cautions. The conception is that the new sanctions volition create a more proportionate regulatory modelling, and overcome the administrative burden for regulators and businesses alike. 1. The civil sanctions created by RESA 2008 include a. opinionated fiscal penalties in compliments of relevant offences (ss. 39-41) b. discretionary requirements which whitethorn include un treatedtled fiscal penalties, compliance requirements, and restoration requirements (ss. 42-45) c. top signalises, which eradicate a modulated individual from carrying on a picky activity (ss. 46-49) d. enforcement lowtakings, whereby regulated souls avoid the instal of other civil sanctions by raft the stairstaking to as trus iirthy sealed works (s. 50). 2. The actual schemes for these civil sanctions argon to be make by the relevant government departments in respect of the matters falling at bottom their respective(prenominal) competences. RESA 2008 scarcely provides the statutory infrastructure for much(prenominal) enforcement mechanisms. In the environmental background, the Environment Agency and Natural England are the first to be given powers infra(a)(a) RESA.The environmental civil Sanctions (England) Order 2010 and the Environmental Sanctions (Misc. Amendments) (England) Regulations 2010 make up now been place in advance parliament. The Welsh Assembly presidential term is brief up co-ordinated secondary polity in Wales to p flummox civil sanctioning powers to the Environment Agency in Wales. 3. The Environment Agency press release on 3 February 2010 says The Environment Agency will be consulting business from 15 February 2010 to champion shape how the new powers will be implemented. The Orders provide only halt on the take aim of the penalties to be provided for 1R Macrory Regulatory jurist Making Sanctions Effective Cabinet king Novembe r 2006 3 4. 5. 6. 7. a. In relation to fixed monetary penalties, the take aim of penalisation is set at surrounded by ? 100 ? 300 (Para. 3, Sch. 1) b. In relation to versatile monetary penalties, no maximum level is set by the RESA 2008, save that where the offence is triable only summarily, the punishment must(prenominal) non exceed the maximum measuring for that fine (Para. 4, Sch. 2). An typesetters case case in the DEFRA extension proposes a variable monetary penalty of ? 38,500 for a water befoulment incident as a result of poor site maintenance.The Environmental polished Sanctions (England) Order 2010 though sets a maximum square off of ? 250,000. RESA 2008 provides that the regulator may only impose a monetary penalty in respect of a relevant offence where it is satisfied beyond commonsense doubt that the subject of the penalty has committed the relevant offence (s 39(2) s. 42(2)). Both fixed and discretionary monetary penalties are to be obligate by the u tility of a notice of intent to impose a penalty, which affords the subject of the penalty an opportunity to make re fork overations to the regulator.If the soulfulness fails to convince the regulator that the penalty should not be issued (or perhaps that the beat of the penalty should be reduced), the regulator will then issue a closing notice requiring the commitment of a penalty. Where a fixed or variable monetary penalty is imposed on a person, or when a notice of intent is served, criminal legal proceeding burnnot be swallowpreted in respect of that person (ss 41, 44). As much(prenominal), the monetary penalty is intended to replace the criminal offence. flow notices are notices issued by a regulator with the intention of prohibiting a person from carrying on a plastered activity until the steps pecified in the notice develop been taken. They toilette be imposed where the regulator reasonably believes that an activity (pre movely occurring or likely to occur) is ca using, or births a significant risk of causing, weighty harm to human wellness, the environment, and the financial interests of consumers, and the regulator reasonably believes that the activity as carried on involves or is likely to involve the thrill of a relevant offence (s 46(4)). Persons receiving a ut almost notice, or a stop notice, take a crap a right of appeal.That right of appeal must supply the subject of the penalty to challenge the decisiveness on (at least) the following primarys chatter RESA 2008 a. That the determination to impose the penalty was ground on an error of incident b. That the finis was wrong in law 4 c. That the finality was unreasonable (and in the case of variable penalties, that the inwardness of the penalty was unreasonable) d. In relation to stop notices only, that the person has not committed the offence and would not be bring on committed the offence if the stop notice was not served. 8.In common with the other civil sanctions, the appeal is made to the new Regulatory Chamber of the First-tier Tribunal created under the Tribunals, lawcourts and Enforcement Act 2007. RESA 2008 itself contains no indication of what level of test the Tribunal will apply to a decision of a regulator. On the face of the Act, it is not put one across whether it should apply a Wednesbury test, or whether it should (in effect) retake the decision. However, the delineate Order provides that the regulator must prove the equip of the offence beyond reasonable doubt on appeal and that the tribunal must determine the standardized of proof in any other matter.An appeal from the First-tier Tribunal is to the Upper Tribunal on a smudge of law only. 9. obligate 6 issues foregather Rethinking regulatory sanctions Regulatory Enforcement and Sanctions Act 2008 an qualify of letters E. L. M. 2009, 21(4), 183-18. iv. EC law generally verbalise 80% of environmental law in UK derives from EU call below. v. Inter subject law see merel y below, increasingly important. 8. Planning law is planning law part of environmental law? Yes, undoubdetly. But beyond this talk to consider see Moore A possible Approach to Planning Law (10th ed, OUP).Who are the regulators? i. primal Government Defra, DCLG, DECC but as well DfT, BERR ii. Local Government historical role in national health shelter. Now Town & Country Planning, EPA 1990 (statutory nuisance) noise to a fault air quality and trouble and contaminated land (for non-special sites). to a fault a regulator under Environmental Permitting Regulations 2007 (soon to be 2010, the EPR) for certain installations iii. The Environment Agency an decision maker non-departmental government body, principal environmental regulator in England & Wales.Responsible for environmental permitting, water resources, flooding and coast management, decamp, arcs work. 13,000 employees. In Scotland SEPA iv. Natural England merger of English Nature and Countryside Agency responsible for n ature conservation, species and habitat guard, National Parks, Countryside and Rights of expression Act. CCW similar role in Wales. In Scotland stinting National Heritage v. Others Maritime and Coastguard Agency alcoholism Water Inspectorate Nu attain Installations Inspectorate. 5 9. The sources of environmental law (1) International Environmental Law 10.Important institutionalize sour on interior(prenominal) law, but in addition on EC law and through and through that internal law. 11. Some examples the 1979 Geneva shape on Long-Range Transboundary Pollution, the Kyoto communications protocol, and the Aarhus assembly (see below). 12. Illustrate immensity of International Law by reference to the UNECE convening on Access to info, general Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). The Aarhus Convention entered into force in October 2001. It was formalize by the UK in February 2005, and by the EU in the same month.As of 8 September 2009, on that point were 43 Parties to the Convention. 13. name 1 In exhibition to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well macrocosm, each(prenominal) political party shall guarantee the rights of opening to discipline, unexceptional betrothal in decision making, and access to justice in environmental matters in pact with the provisions of this Convention. 14. The Convention contains cardinal tolerant themes or pillars i. access to environmental n organic law ( obligates 4 -5) ii. creation affair in environmental decision-making ( constituents 6 -8) and iii. access to justice in environmental matters ( oblige 9). 15. Former unify Nations Secretary- public Kofi Annan state Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of linguistic rule 10 of the Rio answer, which stresses the conduct for citizens participation in environmental issues and for access to discipline on the environment held by public authorities.As much(prenominal) it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations (emphasis added). 16. It has had, and continues to relieve oneself a threatening impact on the outgrowth of EC and UK environmental law. 17. Access to environmental orbit i. the Environmental Information Regulations 2004 (SI 2004/3391) (the EIR) ii. implements directional 2003/4/EC on public access to environmental knowledge (EI leading). The EI directive repealed the earlier guiding 90/313/EEC and was intended to give effect to the Aarhus Convention. 6 18.The EIR apply to environmental information, which is defined in regulation 2 in the following way environmental information has the same meaning as in term 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on (a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the inter accomplishment among these elements (b) actors, such as substances, dexterity, noise, radiation or waste, including radioactive waste, discharges, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a) (c) measures (including administrative measures), such as policies, statute law, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities intentional to protect those elements (d) shrouds on the carrying into treat of environmental legislation e) cost-bene fit and other economical analyses and assumptions used within the framework of the measures and activities referred to in (c) and (f) the state of human health and safety, including the defilement of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be bear on by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c) 19. As is clear from the EIR, that definition replicates that in the EI Directive, which in turn is in similar terms to the definition of environmental information in the Aarhus Convention. The ECJ has treated environmental information as having a broad meaning under Directive 90/313/EEC.In side C-321/96 Mecklenburg v Kreis Pinneberg Der Landrat 1998 ECR I-3809, the ECJ nominate the wording of the definition (albeit different from that in the present version of the EI Directive) to create a broad concept of w hat can constitute environmental information. 20. A broad interpretation of the meaning of environmental information is in any case advocated by the Information delegacyers Office (ICO), see http//www. ico. gov. uk/what_we_cover/environmental_information_regulation/guida nce. aspx. Requests falling under the EIR must be dealt with under those regulations and not as an FOIA request. NB the appendages and exemptions are different. 21.The unequivocal coquette in Office of Communications v Information armorial bearinger 2010 UKSC 3 referred to ECJ the following question nether Council Directive 2003/4/EC , where a public authority holds environmental information, disclosure of which would fuddle some adverse effects on the separate interests served by more than one exception (in casu, the interests of public bail served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately , to any bound sufficient to outweigh the public interest in disclosure, does the Directive require a further sour involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure? . The information requested relates to the precise location of mobile forebode base stations in the United Kingdom. 7 22. For other cases touching on the EIR see Veolia ES Nottinghamshire Ltd v Nottinghamshire CC 2010 Env. L. R. 2 and the BARD case discussed in the Annex below. 23. Public participation in environmental decision-making In R(Greenpeace Ltd) v Secretary of carry for Trade and In clayry 2007 Env. L. R. 29 (a challenge to the audience process in relation to new bod nuclear) Sullivan J said 49. Whatever the position may be in other policy areas, in the evolution of policy in the environmental subject field denotation is no longer a countenance to be granted or withheld at will by the executive. The Un ited Kingdom Government is a signatory to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention).The Preamble records the parties to the Convention Recognizing that adequate protection of the environment is essential to human well be and the recreation of basic human rights, including the right to life itself, Recognizing also that every person has the right to live in an environment adequate to his or her health and well-organism, and the tariff, both(prenominal) individually and in association with others, to protect and rectify the environment for the benefit of present and future generations, Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to come in in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may aim assistance in company to exercise their rights, Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due identify of such concerns Aiming at that placeby to further the sexual conquestability of and transparency in decision-making and to strengthen public support for decisions on the environment, 50 Article 7 deals with Public Participation concerning Plans, Programmes and Policies relating to the Environment. The final sentence says To the extent appropriate, each Party shall crusade to provide opportunities for public participation in the preparation of policies relating to the environment. 51 Given the importance of the decision under challengewhether new nuclear build should now be supportedit is difficult to see how a pr omise of anything less than the fullest public consultation would have been consistent with the Governments obligations under the Aarhus Convention . 24.See also what Lord Hoffmann said on public participation in the context of EIA in Berkeley (see below). 25. Access to justice in environmental matters Article 9 requires that members of the public have access to a review procedure in advance a court of law and/or another(prenominal) independent and impartial body effected by law, to challenge the indispensable and procedural legality of environmental decision-making. Article 9(4) requires that the procedures for rights of access to justice in environmental matters shall provide adequate and effective remedies, including injunctive respite as appropriate, and be fair, equitable, timely, and not prohibitively valuable.In recent times the key issue in England & Wales has been the not prohibitively expensive requirement see below. 8 26. What is the status of the Aarhus Convention? i. It is an international radiation pattern, and the parties to the convention have established a Compliance citizens committee that can investigate alleged instances of non-compliance. There are soon three maladys relating to the UK in which decisions are wait a. ACCC/C/2008/27 this is a complaint brought by the Cultra Residents Association, County Down. The Association was one of five who were applicants in discriminative review trans motions brought in the High speak to in Northern Ireland.The discriminative review proceedings related to the expansion of City spreadport in Belfast. The proceedings were dismissed as being premature (Kinnegar Residents Action Group & Ors, Re Judicial analyze 2007 NIQB 90 (7 November 2007)). The Departments be were awarded against the applicants in the sum of ? 39,454. The Association alleged that the award of be go against its rights under Article 9 of the Aarhus Convention. b. ACCC/C/2008/23 this lifts out of the Morgan v Hinton o rganic fertilizers case considered below. A summary of that case records the complaint as being that the communicants rights under article 9, split up 4, of the Convention were violated when they were scoreed to pay be amounting to nearly ? 5,000, which, in the opinion of the communicants, is prohibitively expensive. The cost order was issued following a discharge of an interim injunction obtained by them earlier in cloistered nuisance proceedings for an injunction to prohibit offensive odours arising from Hinton Organics (Wessex) Ltd operating a waste composting site. The communicants allege that the issuing of the cost order by the flirt, in circumstances where one month before it had agreed and made an order that in that respect was a real issue to be time-tested and that the Claimants should enjoy interim injunctive relief, amounts to non-compliance with article 9, paragraph 4, of the Convention. c.A 3rd communication concerning the UK has been brought Mr. James Thornt on, the CEO of ClientEarth. The complaint thither is that the law and jurisprudence of the UK fail to assent with the requirements of article 9, paragraphs 2 to 5, in particular in connection with restriction on review of substantive legality in the endure of judicial review, entrapations on possibility for individuals and NGOs to challenge act or omissions of private persons which contradict environmental law, prohibitive nature of cost related to access to justice and uncertain and likewise regulatory nature of rules related to time particularizes within which an action for judicial review can be brought. ii.The status of the Convention in the domestic law of the UK was recently considered by the woo of Appeal of England & Wales in Morgan v Hinton Organics (Wessex) Ltd 2009 C. P. Rep. 26 see further below. Carnwath LJ explained (see para. 22) that for the places of domestic law, the convention has the status of an international treaty, not directly incorporated. Thus its provisions cannot be directly use by domestic courts, but may be 9 taken into count on in solvent ambiguities in legislation intended to give it effect (see Halsburys Laws Vol 44(1) Statutes para. 1439)). iii. The EC dimension The EU itself has ratified the Aarhus Convention.As a result its institutions can take enforcement action against genus Phallus maintains for non-compliance. Indeed the provisions of Article 9 of the Aarhus Convention concerning access to justice have been inserted into two key EC environmental directives. Article 10A of the 1985 EC Directive on Environmental Impact legal opinion (EIA) provides that Member severalises must ensure that members of the public have access to a review procedure before a court of law or other independent body to challenge the substantive or procedural decisions, acts or omissions subject to the public participation provisions of the Directive, and that any such procedure shall be fair, equitable, timely, and not prohibitively e xpensive.Directive 96/61/EC on Integrated Pollution streak and reassure (IPPC), which provides for a consent system for a wide range of industrial activities, is similarly amend with a new Article 15a, which also provides that procedures for legal challenges must be fair, equitable, timely, and not prohibitively expensive. Also a. The requirements of Article 9 have been recently considered by the ECJ deterrent example C? 427/07 Commission v Ireland 17 July 20092 b. It is well known that in 2006 CAJE (Capacity Global, Friends of the Earth, the Royal fellowship for the Protection of Birds and WWF) complained to the EC Commission just about UK non-compliance with Aarhus in particular as regards the not prohibitively expensive obligation. A Letter of Formal Notice was sent to the UK in declination 2007.It is understood that the Commission is currently considering whether to issue the UK with a Reasoned Opinion. It is said in Morgan v Hinton Organics that the Commission decision was awaiting the Sullivan melodic theme (www. wwf. org. uk/filelibrary/pdf/justice_report_08. pdf, see below) This arose in the context of infraction proceedings against the land of Ireland. In the proceedings it was alleged, inter alia, that Ireland had failed to transpose requirements in Article 10a of the EIA Directive and Article 15a of the IPPC Directive by ensuring that procedures for access to justice in respect of decisions made under those Directives were not prohibitively expensive.The Commission complained that on that point is no applicable ceiling as regards the amount that an un made applicant will have to pay, as on that point is no legal provision which refers to the fact that the procedure will not be prohibitively expensive. The ECJ reason out that 92. As regards the fourth inclination concerning the costs of proceedings, it is clear that the procedures established in the context of those provisions must not be prohibitively expensive. That covers only the cost s arising from participation in such procedures. such a condition does not hold back the courts from making an order for costs provided that the amount of those costs complies with that requirement. 3 Although it is common ground that the Irish courts may decline to order an unsuccessful party to pay the costs and can, in addition, order expenditure incurred by the unsuccessful party to be borne by the other party, that is merely a discretionary practice on the part of the courts. 94 That mere practice which cannot, by definition, be certain, in the light of the requirements laid down by the settled case-law of the judiciary, cannot be regarded as effectual implementation of the obligations arising from the EIA and IPPC Directives 2 10 and the UKs response to it. This is because the UK Government had indicated in would respond to the Sullivan Report. It then did not do so.The first public response to the Sullivan Report came in the form of the submissions of the UK to the Aarhu s Compliance citizens committee in the Cultra Residents Association communication and related communications (see above). Some of the correspondence betwixt the Commission and the UK is recorded in the archetype in Morgan (see below) as is correspondence among the Aarhus compliance authorities and the UK. 27. The influence of Aarhus in the English Courts there have been numerous cases in England & Wales that have made reference to the Aarhus Convention in the costs context. The most common context in which this reflection has arisen is in respect of applications for a prophylactic costs order or PCO about which much more below. 28. The first time that Aarhus was mentioned by the Courts of England & Wales was in R. Burkett) v Hammersmith and Fulham LBC (Costs) 2004 EWCA 2005 C. P. Rep. 113. Since then Aarhus been at the forefront of the liberalisation of the PCO case-law. The restrictive approach evident in the (non-environmental cases) of R (Corner support Research) v. Secre tary of estate for Trade and Industry 2005 1 WLR 2600 and R (Goodson) v Bedfordshire & Luton Coroner 2006 C. P. Rep. 6 has been relaxed and Aarhus has been at the forefront of this The Court of Appeal in an addendum to their judgment having referred to the requirement in the Aarhus Convention that judicial procedures in environmental law not be prohibitively expensive said 75.A recent get hold of of the environmental justice system (Environmental Justice a report by the Environmental Justice Project, sponsored by the Environmental Law stern and others) recorded the concern of many respondents that the current costs regime precludes compliance with the Aarhus Convention. It also reported, in the context of public civil law, the view of practitioners that the very limited profit yielded by environmental cases has led to little interest in the subject by lawyers save for a few have-to doe with and have-to doe with individuals. It made a number of tributes, including changes to t he costs rules, and the formation of a new environmental court or tribunal. 76. . f the figures revealed by this case were in any sense typical of the costs reasonably incurred in litigating such cases up to the highest level, very serious questions would be raised as to the possibility of ever living up to the Aarhus ideals within our present legal system. 77. evenly disturbing, perhaps, is the fact that this large expenditure on Mrs Burketts behalf has not, as far as we know, yielded any hard-nosed benefit to her or her neighbours. 80. We would strongly welcome a broader study of this difficult issue, with the support of the relevant government departments, the professions and the Legal Services Commission. However, it is important that such a study should be conducted in the real world, and should look at the issue not only from the point of view of the lawyers involved, but also taking notice of the likely practical benefits to their clients and the public.It may be purpose desirable to include in such a study certain issues that relate to a sort of different contemporary concern (which did not arise on the present appeal), namely that an unprotected containant in such a case, if unsuccessful in a public interest challenge, may have to pay very heavy legal costs to the successful defendant, and that this may be a potent factor in deterring litigation directed towards protecting the environment from harm. 3 11 i. R (England) v LB of Tower Hamlets 2006 EWCA Civ 1742 restrictive approach to no private interest not applicable in environmental context, Carnwath LJ refers to Aarhus ii. May 2008 the report of the Working Group on Access to Environmental Justice Ensuring access to environmental justice in England and Wales chaired by Sullivan J. Aarhus central to this report and report itself sience driven the case-law iii.R (Compton) v Wiltshire Primary give care Trust 2008 CP Rep 36 a nonenvironmental case but Court of Appeal in relaxing requirement s refers to Aarhus and the Sullivan Report iv. Further consideration in R (Buglife) v Thurrock Thames Gateway schooling Corporation 2009 C. P. Rep. 8 environmental case further considering criteria for grant of a PCO v. Morgan v Hinton Organics (Wessex) Ltd see above, further relaxation and book of facts of Aarhus vi. Aarhus features prominently in Jackson Report recommendation for judicial review generally and environmental cases for commensurate one way costs suspensioning. (2) EC law 29. Hugely important all environmental lawyers must be EC lawyers. 30. The TEU i.Article 4 the environment an area of shared competence EC and Member republics ii. Article 11(ex Article 6 TEC) Environmental protection requirements must be integrated into the definition and implementation of the coupler policies and activities, in particular with a view to promoting sustainable tuition iii. Article 114(3) (ex Article 95 TEC) The Commission, in its proposals envisaged in paragraph 1 concerni ng environmental protection will take as a base a high level of protection, taking account in particular of any new victimisation based on scientific facts. Within their respective powers, the European fantan and the Council will also look for to achieve this objective iv.Article 191 193 (ex Articles 174 176 TEC) Article 191 (ex Article 174 TEC) center policy on the environment shall contribute to spare-time activity of the following objectives preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the confused regions of the Union. It shall be based on the preventive normal and on the article of faiths that preventive action should be taken, that environmental victimize should as a precedency be rectify at source and that the polluter should pay. 3.In preparing its policy on the environment, the Union shall take account of available scientific and technical data, environmental conditions in the various regions of the Union, 12 the potential benefits and costs of action or wish of action, the economic and social development of the Union as a whole and the equilibrize development of its regions. Article 192 (ex Article 175 TEC) 1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and aft(prenominal) consulting the Economic and amicable military commission and the charge of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191. 2.By way of depreciation from the decision-making procedure provided for in paragraph 1 and without preconception to Article 114, the Council acting unanimously in accordance with a special legislative procedure and later consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt (a) provisions primarily of a fiscal nature (b) measures affecting town and country planning, denary management of water resources or affecting, directly or indirectly, the availability of those resources, land use, with the exception of waste management (c) measures significantly affecting a Member States alternative between different energy sources and the general structure of its energy supply. The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph. 3. ecumenic action programmes context out precedency objectives to be bring home th e bacon shall be choose by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be. 4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy. 5. Without prejudice to the convention that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of temporary derogations, and/or financial support from the viscidity Fund set up pursuant to Article 177.Article 193 (ex Article 176 TEC) The evasive measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission. 31. Numerous Directives (as well as Regulations and Decisions) on environmental law will look at a number below but some examples i. The Environmental Liability Directive 2004/25 ii. The Environmental Impact appraisal Directive iii. The Waste Framework Directive iv. Directive 2000/60 establishing a framework for EC action in the field of water policy. 32. Decisions of the ECJ hugely important purposive approach to interpretation especially ocular in environmental context. A classic example is in relation to EIA 13Directive the Court has frequently pointed out that the scope of Directive 85/337 is wide and its purpose very broad. 33. Why EC law so important? Directly effective, and supreme 34. And there is a further matter Francovich liability and Kobler In Cooper v Attorney General 2008 3 C. M. L. R. 45 Plender J. dismiss ed the first claim brought in the UK for disabilitys, pursuant to the ECJs decision in effort C-224/01 Kobler v Republik Osterreich 2003 ECR I-10239. In that case the ECJ held that a Member State may be answerable in reproachs for failures by its courts of final instance to give effect to EC law, where the failure amounts to a sufficiently serious disrespect of EC law.The case arises out of what are alleged to have been sufficiently serious/manifest errors of EC law by the Court of Appeal when dismissing judicial review proceedings commenced by Stephen Cooper and the other then trustees of the CPRE London pegleg in October 1999 in respect of the Westfields development see R. v London Borough of Hammersmith and Fulham 2000 2 C. M. L. R. 1021 2000 Env. L. R. 549 and 2000 Env. L. R. 532. In dismissing the claim for judicial review the Court of Appeals conclude was in part based on (i) a finding that EIA could not be infallible at the reserved matters stage of the planning autho rity procedure and (ii) that the EIA Directive did not require the Council to elevate a permission if it was granted in breach of the EIA Directive.Both findings have in effect been later(prenominal)ly been overruled by the ECJ see R (Wells) v Secretary of State for Transport, Local Government and the Regions, 2004 ECR I-723 on 7 January 2004 gaucherie C-508/03 Commission v UK (Article 226 (as was) EC proceedings involving, inter alia, Westfields shopping centre) C-590/03 Barker and the House of Lords decision in Barker 2007 1 AC 470. 35. As well as dismissing the judicial review in 2000 the Court of Appeal awarded against the trustees of the CPRE two sets of costs. The Kobler damages claimed were the recovery of those costs. Plender J. concluded that the case fell far below the standard required to constitute a manifest intrusion of the applicable law so as to give rise to a claim for damages.He said any substanceion that a court adjudicating at run short instance can be said to have made a manifest error of residential district law when its judgment is, in some respect, incompatible with a later judgment of the ECJ is as misconceived as it is inconsistent with the judgment in Kobler. federation law is a system in the process of constant development. This is recognized in the many judgments of the ECJ that refer to the subsequent development of friendship law applicable to this domain (see most recently Case C 375/05, Erhard Geuting v Direktor der Landwirtschaftskammer Nordrhein-Westfalen fur den Bereich Landwirtschaft, 4th October 2007, 18. ) This being the case, inconsistencies between national decisions and subsequent judgments of the Court of Justice can be expected to arise.Claims based on the Kobler case are to be reserved for exceptional cases, involving errors that are manifest and in assessing whether this is the case, account must be taken of the specific characteristics of the judicial function, which entails the application of judgment to the interpretation of provisions capable of bearing more than one meaning. 36. The Court of Appeal decision awaited, other Kobler damages claims all in environmental cases unfinished 14 (3) domestic help law 37. Primary legislation the ever growing nature of environmental law i. 2008 the temper variegate Act 2008 Energy Act 2008, Planning and Energy Act 2008, the Planning Act 2008 Regulatory Enforcement and Sanctions Act 2008 ii. 2009 Green Energy (Definition and Promotion) Act 2009 Marine and Coastal Access Act 2009 iii. 010 temper Change (Sectoral Targets) circuit board the Consumer Emissions (Climate Change) Bill the Development on Flood Plains (Environment Agency Powers) Bill the Energy Bill the Environmental Protection (FlyTipping Reporting) Bill Flood and Water Management Bill. 38. Most EC Directives transposed via secondary legislation via EC Act Westlaw suggests that 596 statutory instruments concerned with the environment have been made since 1 January 2008 39. Guidance, policies etc squashy law voluminous in environmental law. 40. Case-law environmental law occupies Courts from Magistrates Courts to the House of Lords i. Recent environmental cases before the House of Lords include R. (Edwards) v Environment Agency (No. 2) 2008 1 W. L. R. 1587 and Wasa International Insurance Co Ltd v Lexington Insurance Co 2009 3 W. L. R. 575.And again to beautify how broad is environmental law the first was a judicial review challenge to the grant of a taint prevention control permit to stand the burn shredded and chipped tyres as a partial substitute fuel in cement kilns in Rugby and the second was about the construction and choice of law for a reinsurance contract concerned with environmental damage clean up. ii. Magistrates Court decisions in environmental cases can end up before the ECJ see Case C-252/05 R. (Thames Water Utilities Ltd) v Bromley Magistrates Court 2007 1 W. L. R. 1945 (on the meaning of waste). 41. There have over the long time been calls for the setting up of a specialist environmental court, see H Woolf Are the Judiciary environmentally Myopic? (1992) 4 Journal of Env Law 1 Professor Malcolm Grants Environmental Court Project Final Report (2000, DETR) and R Macrory & M Woods Modernising Environmental Justice Regulation and the habit of the Environmental Tribunal (UCL London, 2003). (4) the interface with human rights 42. The European Convention on Human Rights does not have any explicit environmental rights but there is a growing body of case-law Article 8, (also Articles 2 and 3) i. Lopez Ostra v Spain 20 EHRR 277 ii. Guerra and others v Italy 26 EHRR 357 15 iii. S v France 65 DR 250 iv. Hatton v United Kingdom (2003) 37 E. H. R. R. 28. Some key concepts in Environmental law 43. We have looked at some key concepts already public participation access to environmental information and access to environmental justice. 44.There are two other key concepts both of which we have seen mentioned directly in th e text of the TEU (i) the polluter pays principle and (ii) the preventive principle. (1) the polluter pays principle 45. In environmental law this is the principle that the party responsible for producing defilement should also be responsible for paying the damage done as a result of that pollution to the national environment. 46. International Law i. Possible regional customary international law as a result of strong support by both EC countries and countries of OECD. ii. OECD early chronicles on polluter pays a. Environment and Economics Guiding ruler concerning international economic aspects of environmental policies (1972) b.The implementation of the Polluter Pays Principle (1974) c. testimony of the Council concerning the activity of the Polluter-Pays Principle to Accidental Pollution (1989) iii. Rio Declaration on Environment and Development 1992 conform out in Principle 16 (Rio Declaration was document produced at 1992 UN Conference the Earth Summit of 27 principles int ended to guide future sustainable development rough the world. Some regard the principles as third generation rights). 47. finishings in countries around the world i. Eco-taxes e. g. US Gas-Guzzler tax where cars with increased pollution pay more. ii. US Superfund law requires polluters to pay for cleanup of hazardous waste sites. iii.Extended polluter accountability First described by the Swedish government in 1975 and applied by economies where the cost of pollution is internalised into the cost of the product to shift responsibility of dealing with pollution from governments to those responsible. See also OECD document Extended Polluter Responsibility (2006). 48. EC Law i. Article 191 TEU (ex Article 174 TEC) 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the 16 ii. iii. iv. v. preventative principle and on the principles that preventive actio n should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Sixth Community Environment Action Programme which covers the period until July 2012 sets out the Polluter Pays Principle. Decision No. 1600/2002 of the European Parliament and of the Council, 2002 O. J. (L242) 1. EC Directive 2004/35/EC Environmental Liability Directive Embodiment of polluter pays principle and provides that the one responsible for the pollution should pay for the damage caused to the environment. Council Recommendation (75/436/Euratom, ECSC, EEC and the attached Communication) As a result of Article 174, the Commission set out the Polluter Pays principle as well as a number of exceptions to the Polluter Pays Principle, which are also provided for under Article 175(5) of the Treaty.Commissions Technical Paper 1 on the new programming period 2000-2006 Application of the Polluter Pays Principle, differentiating the rates of community assistanc e for money Incorporates the polluter pays principle to community assistance for structural funds and ISPA infrastructure operations. 49. Domestic Law contaminated Land Regime (see below) exemplifies it. Contained in Part 2A of the EPA 1990. Contained in Circular 01/2006, Annex 1, para. 37 Under the provisions concerning liabilities, responsibility for paying for remediation will, where feasible, follow the polluter pays principle. Principle referred to in a number of domestic authorities including recently Corby Group litigation v Corby DC 2009 EWHC 1944 (TCC) and R. (Thames Water Utilities Ltd) v Bromley Magistrates Court 2009 Env. L. R. 13. (2) the precautionary principle 50.The Preventative principle Prevention of environmental harm should be the ultimate tendency when taking decisions, actions or omissions with potentially adverse environmental impacts. And an important corollary of this is the precautionary principle A precautionary approach should be taken whenever th ere is disbelief as to whether environmental harm will arise, even if the remedy involves a substantial cost. 51. International law i. Rio Declaration on Environment and Development 1992 a. Set out in principle 15. b. In addition, Principle 2 effecting the Preventative principle States havethe responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. ii.Article 2 of the Framework Convention on Climate Change 1992 The ultimate objective is to achieve the stabilization of a nursery muck up emissions in the atmosphere to a level that would prevent dangerous anthropogenic affray with the climate system. 17 iii. International cases train Smelter Arbitration (US v Canada) 3 RIAA (1941) No state had the right to permit the use of its grime in a way that would cause dishonor by fumes to the territory, people, or property of another. In this case that Canad a should prevent pollution entering the US. iv. Ad hoc expert group established by UNESCO to study the precautionary principle and its application. 52. EC Law i. Article 191 TEU (ex Article 174 TEC) 2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union.It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. ii. European Commission Communication on preventive Principle, endorsed by Heads of Government at a General affairs Council at Nice in December 2000 (COM 2000 1) establishes essence of precautionary Principe and how it should be applied Where there are threats of serious or irreversible damage, lack of full scientific evidence shall not be used as a reason for postponing cost-effective measures to prevent environmenta l degradation. iii.Sixth Community Environment Action Programme which covers the period until July 2012 sets out the precautionary Principle. Decision No. 1600/2002 of the European Parliament and of the Council, 2002 O. J. (L242) 1 iv. Cases, examples a. Joined Cases T-74/00, 76/00, 83/00, 84/00, 85/00, 132/00, 137/00 & 141/00, Artegodan GmbH v Commission 2002 E. C. R. II-4945, at para. 184 Precautionary principle general principle of EC Law. b. UK v Commission 1998 Case C-180/96 ECJ held EC institutions could take protective measures without having to wait until the reality and seriousness of those risks became fully seeming (in this case Commission had issued decision on exigency measures to protect against BSE which UK was seeking to annul). c.Pfizer Animal health SA v Council of the European Union 2002 T13-99 CFI affirmed that under the precautionary principle, EC institutions are entitled in the interests of human health to adopt on the basis of currently incomplete scient ific knowledge protective measures and that they have a broad discretion in this respect. v. Application in European directives relating to environment. Examples a. Directive 2008/ one hundred one/EC on greenhouse screw up emissions trading scheme, Recital (19) specifically refers to precautionary principle. b. Directive on Hazardous waste especially refers to precautionary principle. 53. Domestic Law i. R v Secretary of State for Trade and Industry ex p Dudderidge 1995 (The generation 26 October 1995) Challenge brought that Secretary of State should 18 ssue regulations restricting electromagnetic fields from electric cables being laid as part of national football field under precautionary principle and Article 130r now Art. 191 of EC Treaty. Court of Appeal held that precautionary principle had no distinct legal effect in the UK and Article 130r of EC Treaty did not impose such an obligation on the Secretary of State. ii. R (AMVAC chemic UK Ltd) v The Secretary of State Envir onment, Food, & Rural Affairs and others 2001 EWHC Admin 1011 Court considered precautionary principle in detail. stretch forth J state precautionary principle requires that where threats of serious or irreversible damage, lack of scientific certainty should not be posed as reasoning for postponing cost-effective measures to prevent environmental degradation.Referred to UK Sustainable Development Strategy 1999 referring to precautionary principle, EC communication, Caragena Protocol on Biosafety 2000, Article 174(2) EU Treaty (Community policy on the environment. shall be based on the precautionary principle and on the principles that preventative action should be taken). iii. Now recognised in domestic law UK Interdepartmental Liaison Group on pretend Assessment (HSE) published paper on The Precautionary Principle Policy and Application iv. Application seen in domestic law Incorporation in PPS25 (2001), development and flood risk where preventative principle is seen to be of part icular importance. v. Included in snow-white Paper 2007 on sustainable development. vi.UK Sustainable development Strategy Chapter 4 specifically refers to the precautionary principle (available on defra website). vii. Included in defra Guidelines on Environmental Risk Assessment and Management (1. 6 Risk Management and the precautionary principle). An introduction to the main areas of environmental law 54. This can be no more than the briefest of introductions (1) telephone line timberland 55. Human activities across the spectrum produce pollutants that affect the quality of the air around us, ranging from the everyday of driving to complicated industrial processes producing exceedingly toxic fumes. Regulatory measures are put precedent as a response to try and regulate the production of air pollutants that are produced.Initially there was a more reactive approach of addressing specific problems as they arose. Recently, with increasing concerns about air quality and climate ch ange there is a more proactive and integrated approach to regulating the emission of pollutants. 56. Sources of circularise Quality Law i. International Law publicise pollution is not confined to boundaries pollution caused by one country affects the air quality of anothers. International law has therefore long been concerned with pollution of the atmosphere. International treaties concluded tend to be framework treaties setting out broad principles which can then be implemented with more detail into domestic laws. Sources include 19 a.The 1979 Geneva Convention on Long-Range Transboundary bare Pollution Imposes obligations to endeavour to limit air pollution using the best available technology feasible. Followed by protocols on the step-down of specific pollutants. b. The 1985 Vienna Convention for the Protection of the Ozone spirit level Takes Action against activities that were likely to modify the ozone layer. Followed by the Montreal Protocol setting concrete targets an d the 1999 Gothenburg Protocol aiming setting emissions ceilings for particularly acidic and ground-level ozone emissions, namelySO2, NOx, VOCs and ammonia. c. The 1992 Framework Convention on Climate Change Starts with the position of common but severalize responsibility imposing lesser burdens on developing countries in order to allow sustainable development.Stabilize greenhouse gas emissions at a level that would not interfere with the climate system of food production. Provides for national inventories of emissions, integration of climate change issues. d. The Kyoto Protocol Sets cover song reduction targets for parties signed up to it (listed in Annex I). Adopted in 1997 and entered into force in 2005. Sets out specific reduction targets for different countries in relation to six gases CO2, NOx, HFCs, PFCs, methane, ground-level ozone. ii. EC Law a. close Air Quality Directive (2008/50/EC) Aimed at defining principles of a common strategy to assess and define objectives f or close air quality.Identified 13 ambient air pollutants for which various forms of specific controls were to be introduced under daughter directives. Controls mainly to take the form of limit set, target values, and alert thresholds. Implemented by Air Quality Standard Regulations 2007. Regime originated with Air Quality Framework Directive (96/62/EC). 2008 Directive consolidates animate legislation apart from 4th girl Directive, and must be implemented by 11 June 2001. b. daughter directives 1. 1st young woman Directive, 1999/30/EC Set limit values for SO2, NO2, NOx, PM and lead 2. second Daughter Directive, 2000/69/EC Set limit values for benzene and CO2 3. 3rd Daughter Directive, 2002/3/EC Set objectives and thresholds for concentrations of ozone. 4. th Daughter Directive, 2004/107/EC Set target values for concentrations of arsenic, cadmium, plate and benzo(a)pyrene. 5. Integrated Pollution Prevention and Control Directive (IPPC) (96/61/EC) Creates a regime for controll ing polluting releases from certain industrial activities to air, water and land. Implemented by UK EPR 2007 (see below) 20 6. National Emissions Ceilings Directives (Directive 2001/81/EC) Effects the Gothenburg Protocol by setting ceilings for each MS for emissions of Ammonia, SO2, NOx and VOCs which must have been met by 2010. Implemented by The National Emissions Ceilings Regulations 2002. UK must report emissions of four NECD Pollutants annually, DEFRA produces yearly emission data. 7.Large Combustion Plant Directive (2001/80/EC) Controls emissions of SO2, N0x and dust from large combustion plants with aim of reducing acidification by providing emission limit values for such pollutants. 8. solvent Emissions Directive (1999/13/EC) Limits emissions of VOCs in environment by requiring permits for such emissions in specified activities and installations. Amended by Paints Directive. Effected by EP Regulations, Schedule 14. 9. Petrol desiccation Recovery Directive Aimed at contr olling emissions from go vehicles. Stage II PVR now proposed for controlling emissions when drive vehicles refuelling. 10. Paints Directive (2004/42/EC) Limitation of emissions of VOCs in certain paints.Furthers objective of reducing VOC emissions by setting limits for VOC use. Implemented in UK by Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Production Regulations 2005. 11. Sulphur Control of Liquid Fuels Directive (1999/32/EC), objective to reduce emissions of SO2 resulting from combustion of heavy fuel oil and gas oil by limiting sulphur content in these oils. Implemented by Sulphur inwardness of Liquid Fuels (England and Wales) Regulations 2007. 12. Waste Incineration Device (WID) (2000/76/EC) Applies to most activities that involve burning waste, including burning waste to fuels. Regulates standards and methodologies for incineration of waste. 13.The European Pollutants Release and Transfer Register. Commission Decision 2000/479/EC Provides for a European register of air emissions, allows direct comparison of air emissions across all member states. Member states have to produce a three yearly report on emissions to air and water at industrial installations if certain threshold values exceeded which are then recorded and maintained on the register. c. Domestic Law 1. Environment Permitting Regulations 2007 (see below) Brings series of environmental controls together, including PPC and waste management licensing by requiring that an environmental permit must be granted for operation of a regulated facility.Permit requires regulators to exercise permit-related functions to deliver obligations with various 21 directives include large combustion plan directive, solvent emissions directive, waste incineration directive and petrol vaporisation recover directive. 2. Useful Guidance DEFRA Environmental Permitting General Guidance Manual on Policy and Procedures for A2 and B Installations 3. National Air Quality Strategy a. UK Air Quality Strategy Strategy published by the Secretary of State containing policies with respect to assessment or management of quality of air. Required by s. 80(1) of Environment Act 1995. Sets specific objectives for different air pollutants. b.Local Air Quality Management Environment Act 1995 imposes duty on LAs to conduct reviews of present and future air quality within area, formulating air quality management area (AQMA) where objectives not being met and formulating action plans if necessary. c. In addition Advice in PS23 on relationship between determination of planning applications and pollution control (paras 8 to 10 and Annex 1). EIA requires inter alia air quality assessment. (2) Climate Change 57. This is of course big news i. The Kyoto Protocol Sets binding coke reduction commitments for states. ii. The EU ETS dodge Directive 2009/29/EC (replacing Directive 2003/87/EC) implemented in UK by Greenhouse Gas Emissions Trading Scheme Regulations 2005 a.On 1 January 2005 th e EU ETS came into force. It is the largest multicountry, multi-sector greenhouse gas emission trading scheme worldwide. In total approximately 11,500 installations are presently covered by the EU ETS and it accounts for nearly 45% of total CO2 emissions, and about 30% of all greenhouse gases in the EU (see EU Action against Climate Change EU Emissions Trading An Open Scheme Promoting Global Innovation, CEC, Brussels). b. The EU ETS is the key policy introduced by the EU to help reduce the EUs greenhouse gas emissions. The importance of the EU ETS is further emphasised by the recitals to Directive 2003/87 (see recitals (1) and (2)).Article 1 of Directive 2003/87/EC states This Directive establishes a scheme for greenhouse gas emission allowance trading within the Community (hereinafter referred to as the Community scheme) in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner. The importance of the EU ETS has further been c onfirmed by the Court in Case T-178/05 UK v Commission Case T-374/04 Germany v Commission and Case T-387/04 EnBW see especially in Case T- 22 374/04 Germany v Commission paragraphs 1 -5. In his opinion in Case C-127/07 Arcelor Advocate-General Maduron referred to the EU ETS as being one of the cornerstones of Community environmental protection policy. c.Under the Kyoto Protocol the EU is required to make an 8% reduction in emissions compared to 1990 by the first Kyoto Protocol commitment period (2008 2012)4. d. Recital (10) to Council Decision 2002/358/EC concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the UNFCCC and the