My name is Atemiesima Festus Jumbo. I am a legal practitioner in active legal practice in D. D. Dodo & Co, a leading law firm in Nigeria, with over 10 years of practice experience. I live and work in Abuja, the Federal Capital Territory of Nigeria. I am from the oil rich state of Rivers, in the South-South region of Nigeria. A state whose huge concentration of hydrocarbon deposits, rather than becoming a blessing that would have resulted to its massive development, progress and prosperity of its inhabitants, have become its albatross, due to huge environmental degradation of its entire ecosystems from activities of local and multinational hydrocarbon resource prospecting corporations and attendant violence arising from clamour for resource control by indigenous inhabitants.
On Thursday 5th October 2017 I attended the UK Environmental Law Association’s (UKELA) Scotland Annual Conference. The theme of the conference – ‘Access to Environmental Justice’ – captured my interest. As an international student currently undertaking a Masters programme in ‘Energy and Environmental Law with Professional Skills’ at the University of Aberdeen, and coming from a nation widely regarded as the most populous black nation in the world with its several environmental challenges, I felt a great desire to attend to be part of a forum where enforcement of environmental rights formed the major subject for discussion so that I could explore the possibility of replicating, where practicable, any experience gained in the conference to local environmental realities in Nigeria.
The Conference took place at the Apex Hotels, Edinburgh, and was hosted and sponsored by Westwater Advocates, who (through a selection process by the School of Law, University of Aberdeen) also doubled as my sponsor to the conference, along with another colleague from Aberdeen and three other students from the University of Edinburgh and University of Dundee.
Speakers at the conference were made up of experts and practitioners from diverse backgrounds who were present to discuss their different perspectives to the theme of the conference. Dr Eurig Scandrett from Queen Margaret University, whose paper title was ‘Environmental Justice’, traced the history of environmental justice, placing the development of environmental justice within two classifications of environmental racism and environmental justice movements. He considered the economic cost-shifting decisions of externalities to other areas of the community which engenders impacts on the environment. This may lead to community campaigns processes, often in conjunction with NGOs, that may eventually lead to social movements. He noted that legal battles for environmental justice should not end up as battles, but should lead to environmental justice that would graduate towards economic justice.
Approaching the conference theme from an access to justice and environmental litigation perspective, Dr Ben Christman from the University of Edinburgh submitted that environmental rights of citizens would be unenforceable where access to the courts is unaffordable, as litigation expenses could deter people from pursuing environmental claims in court. He noted some of the costs associated with environmental litigation expenses include court fees, advice and representation, expert witnesses, liability for expenses of opponents and interveners, protective expenses order applications, and appeals. These outlays could be met by legal aid, legal insurance, crowd funding, donations or (for some) rich litigants, or in some other cases be offset by pro bono contributions. He generally concluded that access to environmental justice is unaffordable to most people in Scotland. Christman juxtaposed the human right to live in an environment adequate to health and wellbeing with the right of access to justice provision in Article 9(4) of the Aarhus Convention and highlighted possible roles for (among others): legal aid for environmental litigation; a publicly funded environmental defender office; or a new forum for dispute resolution such as an environmental tribunal/court.
Bringing her environmental law specialist experience to bear, Joanna Waddell, Senior Associate at CMS Cameron McKenna, highlighted the theme from ten different perspectives, discussing some high profile court-awarded environmental penalties such as: Thames Water with over £20m in penalties and fines; Oran Environmental Solutions Ltd over £345,558 confiscation order, etc. awarded for various environmental offences such as pumping of untreated sewage into the River Thames, storing wastes without a licence, issues with odour and vermin, etc. These awards afford some sense of assurance that environmental offences are being taken seriously by relevant public actors. Joanna also discussed other environmental issues such as SEPA, environmental permitting regimes, single permitting frameworks, climate change bills, changes to the EIA Regulations in form of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017.Her discussion was not concluded without touching on the well-publicised environmental law case RSPB v Scottish Ministers, which deals on the challenge by RSPB against the Scottish Ministers’ decision to grant development consent approvals to four offshore wind farm developers.
A Principal Policy Officer of SEPA, Emma Taylor discussed the holistic framework of SEPA’s environmental duties and responsibilities in line with its statutory role of protecting and improving the environment, helping to create sustainable economic growth and other health and well-being benefits. She also identified SEPA’s role as statutory consultee in Scottish development planning. Emma noted her belief that securing environmental success would lead to attainment of economic success.
Ian Cowan, head of Highland Environmental Law and expert in community representation on environmental matters, discussed a paper titled ‘Unconventional Oil and Gas Extraction – a Community Experience.’ The paper centred on Ian’s experience representing different community organisations and interests relating to planning permission applications on projects that could impact negatively on communities. These include: the Concerned Communities of Falkirk intervention on the application of planning permission for Coal Bed Methane (CBM) production by Dart Energy; and Canonbie and District Residents’ Association challenge to the grant of planning permission by Dumfries and Galloway Council in favour of Greenpark Energy for exploration and extraction of CBM and construction of gas compressor station. This aspect of Ian’s paper generated a vivid reflection of some related seminar topics I have taken in the Low Carbon Energy Transition: Renewable Energy Law course in my LLM programme here in the University of Aberdeen, focusing discussions on the reasons for public opposition to renewable energy developments, sometimes fondly referred to by commentators as NIMBYism. Ian’s paper also considered the Scottish legislative efforts on the prohibition of hydraulic fracking, by which he recommends a minimalist approach, in form of a policy ban.
From a waste management expert perspective, Laura Tainsh of Davidson Chalmers LLP discussed ‘Environmental Crime and Enforcement.’ She described waste crime as the new narcotics, offering huge profits to the culprits but costing States so much. She identified a disconnect on what people’s responsibilities are with respect to the handling of waste in Scotland. While recounting the role of SEPA in waste management and enforcement, Laura advocated for greater awareness on waste crimes in the form of public education and engagement, promotion of best practices and greater enforcement, noting that several waste offenders have been prosecuted and convicted for different waste offences in the UK.
An environmental case law update was provided by James Findlay, QC and Denis Garrity of Terra Firma Chambers. Using case illustrations, they divided the discussion into three categories of what they described as: ‘People power’ (Chalmers v Diagio Scotland Ltd, involving action by homeowners against distillers for damage to property through release of ethanol vapour from bonded warehouses); ‘Coal power’ (Fife Council v R.S.A. Insurance plc, dealing with a claim that payment was due under a coal mining restoration bond as a result of a valid restoration notice having been served); and ‘Wind power’ (Wildland Ltd v Scottish Ministers (on an objection to wind farm development, 5 turbines of which were sited within designated ‘wild land’ area). Perhaps the most interesting aspect of this paper was its consideration of RSPB v Scottish Ministers, a case I consistently came across during my professional skills case study of offshore wind farm developments in Scottish waters. This case deals with RSPB’s challenge of the Scottish Ministers’ grant of development consents to four offshore wind farm developers to develop wind farms in four locations, on ground inter alia that the respondent acted in a procedurally incorrect manner. The presenters’ welcome insight in this area stems from the fact they are counsel to RSPB and are still acting in that capacity on the appeal to the Supreme Court.
Dr Lori McElroy, an Environmental Engineer from BRE Scotland, displayed her wealth of experience in housing design philosophy when she discussed her paper ‘Meeting the Housing Challenges, New and Traditional Approaches.’ Although her focus was on a preferred design of low cost houses using wood products, it left me wondering if the sources of the wood materials for design of such houses would not contribute to increases in carbon emissions, since logging for woods for development of large-scale low costs houses is capable of affecting land that is high in biodiversity, cause deforestation and deplete the capacity of the forested areas to act as traditional carbon sinks. This fact is affirmed by the report of the Congressional Research Service titled ‘Deforestation and Climate Change’. The report however, also expressed the view that wood converted into products such as lumber and plywood could store carbon for many years, ranging from an average of 10 years for shipping pallets to 100 years or more for lumber.
From the exciting perspective of an in-house counsel Steve Matthew, Legal and Operations Manager for Scottish Water, gave an insight into the company’s massive scale of operations, its internal and external operational challenges, and environmental responsibilities and liabilities under a strict liability regime (that is to say, without the need to prove mens rea, or criminal intent).
In his discussion on ‘Air Quality’ Robert Sutherland, advocate at Terra Firma Chambers, identified the importance of clean air to the human environment and noted the danger posed to human health by contaminated air – an estimated 403,000 premature deaths per year in the EU and estimated 29,000 premature deaths per year in the UK as a result of exposure to fine particulate matter (PM2.5). These facts are respectively contained in the European Environmental Agency report titled ‘Premature Deaths Attributable to Air Pollution’ and Royal College of Physicians report titled ‘Every Breath We Take: The Lifelong Impact of Air Pollution’. Tracing the legislative history of air quality concerns in Scotland, Robert identified some relevant legislation which included the Alkali Act 1863; Public Health (Scotland) Act 1897; Clean Air Act 1956; EC Environmental Action Programme 1973-1976; Environmental Protection Act 1990 and Air Quality Assessment and Management Directive 96/62/EC. He outlined some of the efforts adopted to secure better air quality in Scotland which include the ban on new petrol/diesel cars in 2032; expansion of charging networks; establishment of low emissions zones; extension of green bus funds; the new Climate Change Bill setting stricter targets to reduce GHG emissions, etc. The discussion also set out some setbacks to the efforts towards achieving cleaner air, such as the Dieselgate incident – that is to say, deliberate falsification of efficiency performance standards by a new vehicle manufacturer.
The emissions performance standard obligation for new vehicle manufacturers is an EU initiative requiring vehicles manufacturers selling their vehicles within the EU to ensure that average emissions from vehicles from their fleet are below specified levels. Regulation 443/2009/EC sets average emission performance standards for new passenger cars at 130g CO2/Km by 2015; and 95g CO2/Km after 2020, while Regulation 510/2011/EC imposes the same requirement for light commercial vehicles at 175g CO2/Km by 2017 and 147g CO2/Km from 2020. Thanks to my Low Carbon Energy Transition: Renewable Energy Law seminar here at the University of Aberdeen, a study of this aspect of Robert’s discussions has been duly undertaken in my programme of study.
The paper presented by Sir Crispin Agnew of Lochnaw Bt QC, of Westwater Advocates, was the icing on the cake at this year’s UKELA Annual Scottish Conference. Presenting his paper ‘Does Wednesbury protect the Environment? The need for an Environmental Court’, Sir Crispin chronicled several instances where the consensus is that courts, planning authorities, energy consent unit, decision makers, etc. lack the requisite expertise to act or interpret planning conditions and obligations with environmental themes. (The title made reference to the well-known legal principle of Wednesbury unreasonableness.) Submitting that access to environmental justice is the driver for establishing environmental courts, he identified other reasons for advocating for the court to include: provision of expertise in decision making; facilitation of speedier environmental decisions; development of consistent ruling on environmental issues; innovative enforcement remedies; as well as fostering international cooperation. According to Sir Crispin, there are over 1,200 environmental courts and tribunals all over the world including in New South Wales, China, Brazil and Chile.
Noting the situation in Scotland as lacking a centralised environmental court, Sir Crispin submitted that Scotland’s environmental justice system is highly fragmented with inconsistent jurisdictions and limited specialist knowledge. He advocated for a Scottish Land and Environmental Court as an environmental court of first instance, with universal jurisdiction in both criminal and civil matters, with criminal appeals to the High Court of Justiciary. And civil appeals on points of law alone to the Court of Session and, where relevant, to the UK Supreme Court.
Discussions on environmental issues at the 2017 UKELA Annual Scottish Conference were indeed an all-encompassing affair, capturing several burning environmental questions with experts in diverse areas available to address them within the framework of the Conference theme. The Conference in my view was worthwhile and UKELA Scotland must be well commended on its giant efforts in putting together an annual conference of this magnitude. It is a conference I would recommend to all environmental law practitioners and students. I learnt a lot from the conference on several avenues to attaining environmental justice in the UK and such instances could be emulated and replicated in other international jurisdictions. There is a saying in Africa where I come from that when a journey brings good fortunes, one would have the impulse to embark on it a second time. The UKELA Annual Scottish Conference is a date I would always love to keep, even for the umpteenth time!