41 - What is an Aarhus Convention claim?…

The human race has discovered much over the past century. We have painted the first images of black holes using simultaneous pictures timed with precise atomic clocks. We have dissembled and reassembled divergent branches of mathematics to prove Fermat’s last, supposedly unsolvable theorem. We have smashed invisible particles together at improbable speeds, and in doing so we have unearthed the very building blocks of our universe. But despite this body of accumulated knowledge, and despite our inherent, immutable curiosity, the answer to one pervasive question still eludes us as a species: what is an Aarhus Convention claim?

It is, by all accounts, the defining question of our age.

Welcome, dear reader, to Landmark’s Aarhus Blog. The blog so devastatingly specific, it has recently obtained its own PhD funding (social science, obviously- not real science).

If, like me, you spend a lot of time pondering life’s great questions, you may be pleased to hear that humanity might just be one small step closer to defining what an Aarhus Convention claim is. How? By first defining what it is not. The scientific method. Regular readers will recall our previous blog on the subject. There is now another case in the works: R (Global Feedback Limited) v His Majesty's Treasury, Secretary of State for Business and Trade [2024] EWHC 1810 (Admin).

This was a JR of secondary legislation implementing a post-Brexit trade deal with Australia: the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023. The claimant is a charity whose purpose is environmental protection, who readers may recognise from other environmental JRs.

In this JR, the claimant contends that the implementation of the trade deal between the UK and Australia, which will reduce import duties on agricultural goods imported from Australia, will lead to substantial net increases in greenhouse gas emissions ("GHG") from food production, particularly cattle meat. This is because (i) production methods for beef in Australia produce a higher volume of GHG than in the UK; and (ii) Australian beef is cheaper than UK beef and so it's likely to result in increased production for and consumption in the UK market. The claimant’s grounds concern the treatment of those issues by the Secretary of State in making the secondary legislation, and include irrationality and a failure to take into account material considerations.

Lang J, who interestingly enough was the judge in the previous case on this subject we blogged about (Clientearth), granted permission for this claim following an oral hearing over summer, and moreover accepted that this was an Aarhus Convention claim, which was disputed by the Secretary of State.

However, unusually, the Secretary of State is appealing her ruling on whether this is an Aarhus Convention claim to the Court of Appeal: pausing the JR in the process, as the claimant cannot continue without the cap.

This will be an interesting one. To be an Aarhus Convention claim it must concern national laws “relating to” the environment. But how far does that stretch? Lang J was clearly convinced that trade deal legislation was sufficiently related to the environment. Certainly, it has obvious environmental impacts, even if it does not directly concern environmental matters. The Convention’s Implementation Guide provides as follows at p.197:

"… national laws relating to the environment are neither limited to the information or public participation rights guaranteed by the Convention, nor to legislation where the environment is mentioned in the title or heading. Rather, the decisive issue is if the provision in question somehow relates to the environment. Thus, also acts and omissions that may contravene provisions on, among other things, city planning, environmental taxes, control of chemicals or wastes, exploitation of natural resources and pollution from ships are covered by paragraph 3, regardless of whether the provisions in question are found in planning laws, taxation laws or maritime laws."

That rather suggests that the judge was right in finding that this was a case that “relates to” the environment, particularly if it is accepted that there will be inevitable environmental impacts as a result of the trade deal. It probably also helps that the claimant and the pleaded grounds have a distinct environmental flavour.

But let’s see what the Court of Appeal have to say! Doing what it does best- answering the questions that have never been answered before…

This blog post was written by Alex Shattock.

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.