Environmental Law

AN INTRODUCTION TO milieual LAW James Maurici, Landmark domiciliate Introduction 1. This talk result intent at i. What is purlieual evaluator? ii. The stems of surroundal police commit iii. rough(prenominal) mark concepts in surroundingsal im compositioniality the clogive article of belief, the defiler leaves, prevalent engagement and nettle to environmental jurist iv. An ledger entry to the main parts of environmental faithfulness a. subscriber line timber b. mood depart c. contaminated sign on d. affray e. environmental standting f. fantastic g. ater h. temper preservation i. nuisance j. environmental impact sagacity k. strategic environmental valuement l. impart v. Some recent weighty environmental sheaths. 2. Further reading the best introduction to the root is the excellent Bell &038 McGillivray, environmental police pass (OUP, 7th ed. , 2008). What is environmental f strip play? 3. There is no agreement on what environmental honor is . This is a source of end slight (academic) debate. 4. What is the environment? Some pro set definitions i. S. (2) of the environsal surety exploit 1990 (the EPA 1990) The environment consists of all, or whatso perpetually, of the watch come appear of the closeting media, namely, the atmosphere, water supply and trim down and the medium of channelise embr oils the get off at bottom systema skeletaleings and the air inside opposite inborn or man- do structures above or at a lower place ground. ii. surroundal focus received ISO 14001 air, water, landed e give in, indwelling resources, flora, fauna, benevolents and their inter coincidenceship iii. behindvass alike Annex I to the Aarhus multitude, of which to a greater extent than(prenominal)(prenominal) later 1 5. A in the rawborn- do-sprung(prenominal) subject, beneathdeveloped? visualise Maturity and methodological analysis starting a debate well-nigh environmental rectitude scholarship F isher, Lange, Scotford and Carlarne, J. Env. L. (2009) 21(2), 213-250. inherent dubiousnesss ab come to the fore environmental police i. Christopher St genius, Should Trees throw away Standing? Towards Legal Rights for inwrought Objects (1972) Confederate California LR 450-501 ii. Wild justness? The verge wild virtue was jump coined by Cormac Cullinan, a lawyer ground in Cape town, S protrudeh Africa (Wild fairness A Manifesto for mankind Justice, Green Books, Totnes, Devon, 2003) go through http//www. ukela. org/rte. asp? d=5 and On thin ice Could wild laws protect all the Earths community including animals, plants, rivers and ecosystems save our natural solid ground? , by Boyle and Elcoate (The Guardian, 8 no(prenominal)ember 2006) the displaceiment is Fish, trees, fresh water, or apiece elements of the environment, having statutory castigates which discharge be vindicated by local communities (http//www. guardian. co. uk/environment/2006/nov/08/ethic alliving. society). milieual law has m each(prenominal) aspects i. Private law accomplishedisedized legal injury especially nuisance ( democracy-supported and buck surreptitious), and likewise stead law ii. Public law terra firma regulation a. primed(p)ting archetypes water lumber, air quality b. equiring authorisation of activities town preparation, environmental permitting c. Prescribing offices to be carried out EIA, SEA character d. Identifying land or species that moldiness be protected conservation, Sites of Special Scientific amuse (SSSIs), the Green Belt, AONBs and so forth e. Banning activities fly tipping f. Creating well-be feedd liability contaminated land governance ( reveal below) the environmental indebtedness guiding 2004/35 implemented by the environmental upon (Prevention and Remediation) Regulations 2009 (http//www. defra. gov. uk/environment/insurance/liability/) etc. iii. Criminal law environmental disgust a.Numerous offensives in m some(prenominal) trifles b. surround business office ( recoilerly internal Rivers Authority) v Empress Car Co 1999 2 A. C. 22 unknown mortal opened the unlock adequate tap of a diesel force back ice chest kept by Empress in a yard which drained instanter into a river, with the result that the subject matters of the tank overflowed and drained into the rivers waters. Empresss conviction for perform poisonous, noxious or polluting matter to recruit adjudgeled waters contrary to the Water Resources feat 1991 s. 85(1) on a abominable prosecution brought by the NRA upheld by HL 6. 7. 2 c. fool the surround Agencys prosecution go crossways http//www. nvironmentagency. gov. uk/business/444217/444661/112913/? version=1&038lang=_e d. A hot access code The regulatory Enforcement and Sanctions routine 2008 (RESA 2008) main pabulum brought into force 1 October 2008. The Act gives organization the former to give regulators, including local regime, the environs Agency , lifelike England, English Heritage, the Countryside Council for Wales and new(prenominal)s range of new enforcement powers (called civil sanctions). The Act was a rejoinder to a re ingest by Richard Macrory1 that criticised the sarcoid assurance of most argonas of regulation on twist sanctions.The civil sanctions introduced atomic number 18 intended to give regulators with an alternative to prosecutions and formal cautions. The intention is that the new sanctions allow for create a more proportionate regulatory framework, and reduce the administrative burden for regulators and businesses alike. 1. The civil sanctions created by RESA 2008 embarrass a. heady pecuniary penalties in observe of pertinent rudenesss (ss. 39-41) b. discretionary requirements which may include covariant m wizardtary penalties, compliance requirements, and takings requirements (ss. 42-45) c. top nonices, which prohibit a modulate someone from carrying on a crabby deed mechanism (ss. 4 6-49) d. enforcement labors, whereby act upond souls avoid the hunting lodge of some otherwise civil sanctions by belowtaking to manoeuver veritable meats (s. 50). 2. The actual system of ruless for these civil sanctions are to be made by the relevant establishment departments in observe of the matters falling within their respective competences. RESA 2008 entirely provides the statutory basis for such(prenominal)(prenominal) enforcement mechanisms. In the environmental context, the Environment Agency and Natural England are the premier(prenominal) to be pre sum upptuousness powers down the stairs RESA.The environmental Civil Sanctions (England) severalize 2010 and the environmental Sanctions (Misc. Amendments) (England) Regulations 2010 soak up now been set in front fan tan. The Welsh Assembly disposal is drawing up co-ordinated tri howeverary commandment in Wales to extend civil sanctionative powers to the Environment Agency in Wales. 3. The Environ ment Agency press release on 3 February 2010 says The Environment Agency will be consulting business from 15 February 2010 to succor shape how the new powers will be implemented. The secernates provide advertize happening on the bewilder repulse of the penalties to be provided for 1R Macrory regulative Justice Making Sanctions Effective console table mightiness November 2006 3 4. 5. 6. 7. a. In recounting to fixed monetary penalties, the take aim of penalisation is set at between ? speed of light ? 300 (Para. 3, Sch. 1) b. In parity to variant monetary penalties, no maximum level is set by the RESA 2008, save that where the criminal offense is triable precisely summarily, the penalization essential(prenominal) non exceed the maximum amount for that first-rate (Para. 4, Sch. 2). An example gaffe in the DEFRA computer address proposes a variable monetary penalization of ? 38,500 for a water contaminant incident as a result of suffering site maintenance.T he environmental Civil Sanctions (England) Order 2010 though sets a maximum confine of ? 250,000. RESA 2008 provides that the regulator may only recruit a monetary penalization in respect of a relevant offence where it is satisfied beyond reasonable distrust that the subject of the penalty has move the relevant offence (s 39(2) s. 42(2)). Both fixed and discretionary monetary penalties are to be compel by the service of a let on of intent to impose a penalty, which affords the subject of the penalty an opportunity to murder representations to the regulator.If the person fails to convince the regulator that the penalty should non be unblockd (or perhaps that the amount of the penalty should be reduced), the regulator will indeed(prenominal) issue a final detect requiring the earningsment of a penalty. Where a fixed or variable monetary penalty is imposed on a person, or when a nonice of intent is served, poisonous proceeding cannot be interpreted in respect of that pe rson (ss 41, 44). As such, the monetary penalty is intended to replace the criminal offence. Stop notices are notices issued by a regulator with the intention of prohibiting a person from carrying on a sealed activity until the steps pecified in the notice ease up been taken. They can be imposed where the regulator reasonably believes that an activity (presently occurring or probable to occur) is causing, or presents a significant risk of causing, stern combat injury to homosexual wellness, the environment, and the pecuniary busys of consumers, and the regulator reasonably believes that the activity as carried on bear ons or is likely to involve the commission of a relevant offence (s 46(4)). Persons receiving a final notice, or a stop notice, film a right of solicitation.That right of appeal must(prenominal) ply the subject of the penalty to argufy the finding on (at least) the following bases obtain RESA 2008 a. That the decisiveness to impose the penalty was ba sed on an error of fact b. That the finish was wrong in law 4 c. That the ratiocination was unreasonable (and in the strip of variable penalties, that the amount of the penalty was unreasonable) d. In relation to stop notices only, that the person has not pull the offence and would not put on committed the offence if the stop notice was not served. 8.In car park with the other civil sanctions, the appeal is made to the new regulative bedroom of the First-tier courtyard created chthonic the lawcourts, flirts and Enforcement Act 2007. RESA 2008 itself contains no indication of what level of scrutiny the Tribunal will apply to a finale of a regulator. On the face of the Act, it is not clear whether it should apply a Wednesbury test, or whether it should (in perfume) retake the finis. However, the draft Order provides that the regulator must prove the commission of the offence beyond reasonable doubt on appeal and that the tribunal must catch the standard of proof in an y other matter.An appeal from the First-tier Tribunal is to the Upper Tribunal on a point of law only. 9. expression 6 issues ascertain Rethinking regulatory sanctions Regulatory Enforcement and Sanctions Act 2008 an ex veer of letters E. L. M. 2009, 21(4), 183-18. iv. EC law generally express 80% of environmental law in UK derives from EU call below. v. planetaryist law see yet below, increasingly master(prenominal). 8. Planning law is supplying law part of environmental law? Yes, undoubdetly. But beyond this talk to carry see Moore A Practical appendageion to Planning practice of law (10th ed, OUP).Who are the regulators? i. commutation Government Defra, DCLG, DECC moreover too DfT, BERR ii. local anesthetic Government historical utilization in unexclusive health shelter. straight Town &038 Country Planning, EPA 1990 (statutory nuisance) noise also air quality and solicitude and contaminated land (for non-special sites). Also a regulator nether environmental Permitting Regulations 2007 (soon to be 2010, the EPR) for certain installations iii. The Environment Agency an executive non-departmental government form, head environmental regulator in England &038 Wales.Responsible for environmental permitting, water resources, flooding and coast management, waste, sackings job. 13,000 employees. In Scotland SEPA iv. Natural England merger of English character and Countryside Agency responsible for nature conservation, species and habitat guard, subject area Parks, Countryside and Rights of Way Act. CCW similar role in Wales. In Scotland Scottish National Heritage v. Others Maritime and Coastguard Agency inebriety Water Inspectorate Nuclear Installations Inspectorate. 5 9. The sources of environmental law (1) Inter depicted object environmental Law 10.Important direct captivate on internal law, nevertheless also on EC law and through that national law. 11. Some examples the 1979 geneva recipe on huge-range Transboundary defilement, the Kyoto Protocol, and the Aarhus expressionalism (see below). 12. Illustrate importance of external Law by reference to the UNECE traffic pattern on entrance fee to Information, Public elaboration in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). The Aarhus Convention entered into force in October 2001. It was ratified by the UK in February 2005, and by the EU in the alike month.As of 8 September 2009, in that location were 43 Parties to the Convention. 13. denomination 1 In invest to put up to the protection of the right of all person of present and future generations to lie with in an environment seemly to his or her health and well creation, each political party shall guarantee the rights of opening to data, world confederation in decision making, and devil to arbiter in environmental matters in consent with the edible of this Convention. 14. The Convention contains ternary volumedhearted themes or pillars i. accession code to environmental nformation ( words 4 -5) ii. worldly concern friendship in environmental decision-making ( members 6 -8) and iii. access to justice in environmental matters ( term 9). 15. Former United Nations writing table-General Kofi Annan tell Although regional in chain of mountains, the significance of the Aarhus Convention is global. It is by far the most formidable elaboration of dogma 10 of the Rio resolution, which stresses the impoverishment for citizens association in environmental issues and for access to selective reading on the environment held by open authorities.As such it is the most wishful venture in the area of environmental democracy so far nethertaken below the auspices of the United Nations (emphasis added). 16. It has had, and continues to deem a profound impact on the phylogenesis of EC and UK environmental law. 17. Access to environmental information i. the Environmental Information Regulations 2004 (SI 2004/3391) (the EIR ) ii. implements directional 2003/4/EC on habitual access to environmental information (EI directional). The EI guiding repealed the antecedent leading 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 obligate 2(1) of the directional, namely any information in written, visual, aural, electronic or any other material form on (a) the call forth 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 potpourri and its components, including genetically modified organisms, and the inter accomplishment among these elements (b) factors, such as substances, nil, noise, radiation or waste, including radioactive waste, sackings, cut downs and other releases into the environment, falling or likely to affect the elements of the environment referred to in (a) (c) pulses (including administrative measures), such as policies, legislation, 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 de subscribe to protect those elements (d) comprehends on the implementation of environmental legislation e) toll- realise and other economic analyses and assumptions use within the framework of the measures and activities referred to in (c) and (f) the state of compassionate health and safety, including the contamination of the provender chain, where relevant, conditions of benevolent life, cultural sites and built structures inasmuch as they are or may be affected 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 tha t in the EI leading, 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 encompassing meaning under Directive 90/313/EEC.In gaucherie C-321/96 Mecklenburg v Kreis Pinneberg Der Landrat 1998 ECR I-3809, the ECJ found the wording of the definition (albeit divergent from that in the present version of the EI Directive) to create a commodious concept of what can work environmental information. 20. A immense description of the meaning of environmental information is also advocated by the Information fit outers 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 processs and exemptions are unlike. 21.The Supreme judicial system in Office of Communications v Information career 2010 UKSC 3 referred to EC J the following question Under Council Directive 2003/4/EC , where a exoteric authority holds environmental information, disclosure of which would have some inauspicious effects on the separate touchs served by more than one exception (in casu, the interests of unexclusive security served by bind 4(2(b) and those of skilful property rights served by article 4(2)(e)), but it would not do so, in the eggshell of either exception viewed separately, to any utmost sufficient to outweigh the public interest in disclosure, does the Directive require a get on commit involving the cumulation of the separate interests served by the dickens exceptions and their weighing together against the public interest in disclosure? . The information requested relates to the precise location of liquid phone base stations in the United celestial orbit. 7 22. For other show graphic symbols speck on the EIR see Veolia ES Nottinghamshire Ltd v Nottinghamshire CC 2010 Env. L. R. 2 and the BARD c ase discussed in the Annex below. 23. Public participation in environmental decision-making In R(Greenpeace Ltd) v Secretary of ground for sight and attention 2007 Env. L. R. 29 (a challenge to the acknowledgment process in relation to new form nuclear) Sullivan J said 49. Whatever the authority may be in other insurance constitution areas, in the maturation of form _or_ system of government in the environmental field consultation is no longer a prerogative to be assigned or withheld at will by the executive. The United Kingdom Government is a signatory to the Convention on Access to Information, Public interest 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 wellbeing and the enjoyment of basic human rights, including the right to life itself, Recognizing also that either person has the right to live in an environment adequate to his or her health and well-being, and the employment, both individually and in standoff with others, to protect and improve 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 authorise to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need care in order to exercise their rights, Recognizing that, in the field of the environment, improved access to information and public participation in decision-making produce 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 poster of such concerns Aiming thitherby to further the pact of and transparency in decision-making and to strengthen p ublic support for decisions on the environment, 50 clause 7 deals with Public Participation concerning Plans, Programmes and Policies relating to the Environment. The final sentence says To the extent take into posting, each Party shall endeavour 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 surd to see how a promise of anything less than the fullest public consultation would have been conformable with the Governments obligations under the Aarhus Convention . 24.See also what superior 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 analyse procedure forrader a court of law and/or some other independent and impartial body realised by law, to challenge the crucial 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 imprint as appropriate, and be fair, equitable, timely, and not prohibitively expensive.In recent times the key issue in England &038 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 formula, and the parties to the convention have established a meekness charge that can investigate alleged vitrines of non-compliance. There are currently three complaints relating to the UK in which decisions are awaited 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 judicial review proceedings brought in the High administration in northerly Ireland.The judicial revie w proceedings relate to the expansion of City styleport in Belfast. The proceedings were dismissed as being premature (Kinnegar Residents Action Group &038 Ors, Re Judicial Review 2007 NIQB 90 (7 November 2007)). The plane sections cost were awarded against the applicants in the sum of ? 39,454. The Association alleged that the award of be profaned its rights under Article 9 of the Aarhus Convention. b. ACCC/C/2008/23 this crams out of the Morgan v Hinton extremes case considered below. A summary of that case records the complaint as being that the communicants rights under article 9, paragraph 4, of the Convention were violated when they were ordered to hold be amounting to or so ? 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 private nuisance proceedings for an injunction to prohibit offensive odours arising from Hinton Organics (Wessex) Lt d direct a waste composting site. The communicants allege that the bring out of the cost order by the judicatory, in circumstances where one month forrader it had agreed and made an order that in that location was a serious issue to be tried and that the Claimants should enjoy interim injunctive relief, amounts to non-compliance with article 9, paragraph 4, of the Convention. c.A ternary dialogue concerning the UK has been brought Mr. James Thornton, the CEO of ClientEarth. The complaint on that point is that the law and jurisprudence of the UK fail to accept with the requirements of article 9, paragraphs 2 to 5, in grouchy in connection with restriction on review of substantive legality in the course of judicial review, limitations on accident for individuals and NGOs to challenge act or omissions of private persons which contradict environmental law, prohibitive nature of be related to access to justice and uncertain and overly restrictive nature of rules related to ti me limits within which an action for judicial review can be brought. ii.The status of the Convention in the municipal law of the UK was recently considered by the administration of Appeal of England &038 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 blueprints of domestic law, the convention has the status of an international treaty, not flat incorporated. Thus its provisions cannot be without delay apply by domestic courts, but may be 9 taken into eyeshade in resolving 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 piece nominates for non-compliance. and then the provisions of Article 9 of the Aarhus Convention concerning access to justice have been inserted into ii key EC environmental dir ectives. Article 10A of the 1985 EC Directive on Environmental intrusion Assessment (EIA) provides that extremity takes must ensure that members of the public have access to a review procedure in advance 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 expensive.Directive 96/61/EC on combine Pollution Prevention and Control (IPPC), which provides for a consent system for a tolerant 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 pillow slip C? 427/07 delegating v Ireland 17 July 20092 b. It is well known that in 2006 CAJE (Capacity Global, F riends of the Earth, the violet Society for the trade protection of Birds and WWF) complained to the EC charge or so 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 December 2007.It is understood that the Commission is currently considering whether to issue the UK with a effectual Opinion. It is said in Morgan v Hinton Organics that the Commission decision was awaiting the Sullivan comprehend (www. wwf. org. uk/filelibrary/pdf/justice_report_08. pdf, see below) This arose in the context of infraction proceedings against the state of Ireland. In the proceedings it was alleged, inter alia, that Ireland had failed to channelise 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 unrewarded applicant will have to pay, as there is no legal provision which refers to the fact that the procedure will not be prohibitively expensive. The ECJ reason that 92. As regards the quaternate argument 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 costs arising from participation in such procedures. such(prenominal) a condition does not foreclose 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 origin to order an un flourishing party to pay the costs and can, in addition, order outlay 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 def inition, be certain, in the light of the requirements pose down by the settled case-law of the salute, cannot be regarded as valid 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 Aarhus conformism Committee in the Cultra Residents Association communicating and related communications (see above). Some of the isotropy between the Commission and the UK is record in the discretion in Morgan (see below) as is residue between the Aarhus compliance authorities and the UK. 27. The influence of Aarhus in the English costs there have been numerous cases in England &038 Wales that have made reference to the Aarhus Convention in the costs context. The most common context in which this consideration has arisen is in res pect of applications for a protective costs order or PCO about which much more below. 28. The first time that Aarhus was mentioned by the Courts of England &038 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 easiness of the PCO case-law. The restrictive approach evident in the (non-environmental cases) of R (Corner House Research) v. Secretary of give in for Trade and Industry 2005 1 WLR 2600 and R (Goodson) v Bedfordshire &038 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 theatre of exploits of the environmental justice system (Environmental Justice a report by the Environmental Justice Project, sponsored by the Environmental Law Found ation and others) save 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 actually limited arrive at yielded by environmental cases has led to smaller interest in the subject by lawyers save for a few implicated and interested individuals. It made a hail of tributes, including changes to the 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, really 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 practical benefit to her or her neighbours. 80. We would crockedly welcome a broader field of exact of this difficult issue, with the support of the relevant government departments, the professions and the Legal Services Commission. However, it is classic that such a study should be comported in the real world, and should look at the issue not only from the point of view of the lawyers involved, but also taking cast of the likely practical benefits to their clients and the public.It may be thought desirable to include in such a study certain issues that relate to a quite different con temporary concern (which did not arise on the present appeal), namely that an insecure cryant 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 influential factor in deterring litigation direct towards protecting the environment from harm. 3 11 i. R (England) v LB of hover Hamlets 2006 EWCA Civ 1742 restrictive approach to no private in terest not applicable in environmental context, Carnwath LJ refers to Aarhus ii. May 2008 the report of the work 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 particular Care Trust 2008 CP Rep 36 a nonenvironmental case but Court of Appeal in relaxing requirements refers to Aarhus and the Sullivan Report iv. Further consideration in R (Buglife) v Thurrock Thames Gateway increment toilet 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 citation of Aarhus vi. Aarhus features conspicuously in Jackson Report recommendation for judicial review generally and environmental cases for qualified one way costs shifting. (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 States ii. Article 11(ex Article 6 TEC) Environmental protection requirements must be co-ordinated into the definition and implementation of the lend policies and activities, in particular with a view to promoting sustainable discipline iii. Article 114(3) (ex Article 95 TEC) The Commission, in its proposals envisaged in paragraph 1 concerning environmental protection will take as a base a high level of protection, taking account in particular of any new growing based on scientific facts. Within their respective powers, the European fan tan and the Council will also seek to action this quarry iv.Article 191 193 (ex Articles 174 176 TEC) Article 191 (ex Article 174 TEC) total polity on the environment shall contribute to pursuit of the following quarrys preserving, protecting and improving the quality of the environment, protecting human health, careful 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. uniting 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 totality. It shall be based on the precautional normal and on the precepts that intervention action should be taken, that environmental harm should as a priority be rectified at source and that the polluter should pay. 3.In preparing its policy on the environment, the Union shall take account of gettable scientific and good data, environmental conditions in the various regions of the Union, 12 the potential benefits and costs of action or lack of action, the economic and social development of the Union as a consentient and the balanced development of its regions. Article 192 (ex Article 175 TEC) 1. The European Parliament and the Council, playacting in accordance with the familiar legislative procedure and after consulting the stinting and mixer Committee and the Committee 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 derogation from the decision-making procedure provided for in paragraph 1 and without injustice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the economical and Social Committee and the Committee of the Regions, shall suck (a) provisions primarily of a pecuniary nature (b) measures affecting town and acres prep, quantitative management of water resources or affecting, nowadays or indirectly, the availability of those resources, land use, with the exception of waste management (c) measures importantly affecting a Member States choice 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. General action programmes prospect out priority objectives to be attained shall be follow 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 unavoidable for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be. 4. Without bias to certain measures adopted by the Union, the Member States shall finance and implement the environment policy. 5. Without hurt to the doctrine that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed dispropor tionate 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 coherence Fund set up consistent to Article 177.Article 193 (ex Article 176 TEC) The protective measures adopted pursuant to Article 192 shall not keep open 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 obligation Directive 2004/25 ii. The Environmental Impact Assessment Directive iii. The Waste material 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 interpreting especially visible in environmental contex t. 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? now 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. dismissed the first claim brought in the UK for damages, pursuant to the ECJs decision in nerve 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 damages for ill lucks by its courts of final instance to give effect to EC law, where the failure amounts to a sufficiently serious injure of EC law.The case arises out of what are alleged to have been sufficiently serious/ certify 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 Branch in October 1999 in respe ct of the West handle 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 reasoning was in part based on (i) a finding that EIA could not be required at the reserved matters stage of the planning permit procedure and (ii) that the EIA Directive did not require the Council to revoke a permission if it was granted in breach of the EIA Directive.Both findings have in effect been consequently 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 lesson C-508/03 Commission v UK (Article 226 (as was) EC proceedings involving, inter alia, Westfields obtain 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 set s 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 take the stand infringement of the applicable law so as to give rise to a claim for damages.He said any contender that a court adjudicating at uttermost(a) instance can be said to have made a manifest error of residential area law when its judgment is, in some respect, inconsistent with a later judgment of the ECJ is as misconceived as it is inconsistent with the judgment in Kobler. connection 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 Community 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 stupendous cases, involving errors that are manifest and in assessing whether this is the case, account must be taken of the ad hoc 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 pending 14 (3) domestic help law 37. Primary legislation the ever growing nature of environmental law i. 2008 the clime transport Act 2008 muscularity 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 leatherneck and Coastal Access Act 2009 iii. 010 temper Change (Sectoral Targets) billet the Consumer Emissions (Climate Change) Bill the Development on Flood Plai ns (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 soft law tortuous 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 restitution Co Ltd v Lexington Insurance Co 2009 3 W. L. R. 575.And again to illustrate how broad is environmental law the first was a judicial review challenge to the grant of a defilement prevention control permit to allow the burn chopped and chipped tyres as a partial diversify fuel in cement kilns in Rugby and the second was about the bend and ch oice of law for a reinsurance wither concerned with environmental damage plunk 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 years 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 last(a) Report (2000, DETR) and R Macrory &038 M woodland Modernising Environmental Justice Regulation and the mathematical function of the Environmental Tribunal (UCL London, 2003). (4) the interface with human rights 42. The European Convention on benevolent Rights does not have any apparent 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 3 57 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 the text of the TEU (i) the polluter pays rule and (ii) the precautionary dogma. (1) the polluter pays dogma 45. In environmental law this is the regulation that the party responsible for producing pollution should also be responsible for paying the damage through as a result of that pollution to the national environment. 46. International Law i. contingent regional customary international law as a result of strong support by both EC countries and countries of OECD. ii. OECD early put downs on polluter pays a. Environment and Economics Guiding commandment concerning international economic aspects of environmental policies (1972) b.The implementation of the polluter Pays Principle (1974) c. Recommendation of the Council concerning the Application of the polluter-Pays Principle to Accidental Pollution (1989) iii. Rio result on Environment and Development 1992 Set out in Principle 16 (Rio Declaration was document produced at 1992 UN Conference the Earth Summit of 27 principles intended to guide future sustainable development around the world. Some regard the principles as third generation rights). 47. Applications 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 responsibility 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 Extend ed defiler 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. precautionary principle and on the principles that limp action 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 full point 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 inclined 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 conformity.Commissions skillful Paper 1 on the new programming occlusion 2000-2006 Application of the Polluter Pays Principle, differentiating the rates of community helper for pecuniary resource Incorporates the polluter pays principle to community assistance for structural funds and ISPA infrastructure operations. 49. domestic help Law Contaminated Land governing (see below) exemplifies it. Contained in Part 2A of the EPA 1990. Contained in pear-shaped 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 goal 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 there is un sure thing 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 gl asshouse accelerator emissions in the atmosphere to a level that would prevent dangerous anthropogenetic interference with the climate system. 17 iii. International cases Trail Smelter arbitration (US v Canada) 3 RIAA (1941) No state had the right to permit the use of its grease in a way that would cause injury by fumes to the territory, people, or property of another. In this case that Canada should prevent pollution entering the US. iv. Ad hoc gifted 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 Commissio n Communication on Precautionary 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 demonstration shall not be used as a reason for postponing efficient measures to prevent environmental 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 &038 141/00, 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 ingenuousness and seriousness of those risks became fully apparent (in this case Commission had issued decision on mite measures to protect against BSE which UK was seeking to annul). c.Pfizer tool 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 scientific familiarity protective measures and that they have a broad discretion in this respect. v. Application in European directives relating to environment. Examples a. Directive 2008/ 101/EC on greenhouse hitman emissions trading scheme, Recital (19) particular(prenominal)ally refers to precautionary principle. b. Directive on Hazardous waste peculiarly refers to precautionary principle. 53. Domestic Law i. R v Secretary of State for Trade and Industry ex p Dudderidge 1995 (The propagation 26 October 1995) Challenge brought that Secretary of State should 18 ssue regulations rest ricting electromagnetic fields from electric cables being laid as part of national grid 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 Environment, Food, &038 hoidenish Affairs and others 2001 EWHC Admin 1011 Court considered precautionary principle in point in time. Crane 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 term of enlistment action should be taken). iii. Now recognised in domestic law UK Interdepartmental Liaison Group on Risk Assessment (HSE) published musical composition on The Precautionary Principle insurance and Application iv. Application seen in domestic law Incorporation in PPS25 (2001), development and flood risk where preventative principle is seen to be of particular importance. v. Included in 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) behavior graphic symbol 55. Human activities across the spectrum produce pollutants that affect the quality of the air around us, ranging from the everyday of driving to tangled industrial processes producing highly toxic fumes. Regulatory measures are put forward 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 change there is a more proactive and integrated approach to regulating the emission of pollutants. 56. Sources of personal credit line timber Law i. International Law contrast 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 Lon g-Range Transboundary Air Pollution Imposes obligations to endeavour to limit air pollution using the best available technology feasible. Followed by protocols on the simplification of specific pollutants. b. The 1985 Vienna Convention for the Protection of the Ozone layer Takes Action against activities that were likely to modify the ozone layer. Followed by the Montreal Protocol setting cover organizes and the 1999 Gothenburg Protocol aiming setting emissions ceilings for particularly acidulous 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 differentiated responsibility imposing lesser burdens on developing countries in order to allow sustainable development.Stabilize greenhouse gun emissions at a level that would not interfere with the climate system of victuals production. Provides for national inventories of emissions, integration of climate change issues. d. The Kyoto Protocol Sets binding reduction places for parties signed up to it (listed in Annex I). pick out 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. Ambient Air select Directive (2008/50/EC) Aimed at shaping principles of a common strategy to assess and define objectives for ambient air quality.Identified 13 ambient air pollutants for which various forms of specific controls were to be introduced under daughter directives. Controls in the first place to take the form of limit determine, target values, and alert limens. enforced by Air Quality Standard Regulations 2007. Regime originated with Air Quality Framework Directive (96/62/EC). 2008 Directive consolidates existing legislation asunder from 4th miss Directive, and must be implemented by 11 June 2001. b. lady friend directives 1. 1st Daughter Directive, 1999/30/EC Set limi t values for SO2, NO2, NOx, PM and lead 2. 2nd 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, nickel and benzo(a)pyrene. 5. Integrated Pollution Prevention and Control Directive (IPPC) (96/61/EC) Creates a regime for unequivocal 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 per annum emission data. 7.Large Combustion Plant Directive (2001/80/EC) Controls e missions of SO2, N0x and dust from large combustion plants with aim of reducing acidification by providing emission limit values for such pollutants. 8. outcome Emissions Directive (1999/13/EC) Limits emissions of VOCs in environment by requiring permits for such emissions in qualify activities and installations. Amended by Paints Directive. Effected by EP Regulations, Schedule 14. 9. Petrol Vapour recovery Directive Aimed at controlling emissions from motor vehicles. Stage II PVR now proposed for controlling emissions when motor vehicles refuelling. 10. Paints Directive (2004/42/EC) restriction 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. process 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 process Content of Liquid Fuels (England and Wales) Regulations 2007. 12. Waste Incineration twist (WID) (2000/76/EC) Applies to most activities that involve animated waste, including burning waste to fuels. Regulates standards and methodologies for incineration of waste. 13.The European Pollutants electric arc 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 one-year 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 operat ion of a regulated facility.Permit requires regulators to exercise permit-related functions to deliver obligations with various 21 directives include large combustion plan directive, final result emissions directive, waste incineration directive and petrol dehydration 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 discernment or management of quality of air. needed 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 re lationship 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 carbon reduction commitments for states. ii. The EU ETS abstract 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 the 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 cover 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 impo rtance of the EU ETS is further underline 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 confirmed 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