Human Rights and Environmental Pollution: Court of Appeal Decision in R (Mathew Richards) v The Environment Agency

Background

The Court of Appeal on 17 January 2022 handed down the reasons for its decision on 17 December 2021 to allow the appeal of the Environment Agency in R (on the application of Richards) v Environment Agency [2022] EWCA Civ 26.

The decision of the High Court in September 2021 drew attention, particularly because it was the first domestic judgment dealing with both Articles 2 and 8 of the European Convention on Human Rights (ECHR) in an environmental context. It was decided in favour of the claimant, and some commentators understood the judge had found a breach of human rights.

That the decision has been overturned may instinctively be read as negative for environmental campaigners, but a detailed reading show positives can be taken for future environmental claims involving human rights.

The Claim

The case related to landfill site in Staffordshire operated by Walleys Quarry Limited, which was causing hydrogen sulphide pollution. The Environment Agency has statutory responsibility for regulating the landfill site. The Environment Agency accepted that there was a real problem with emissions of hydrogen sulphide at the site.

The claim was brought by a five year old child, Mathew Richards, who was born prematurely and has severe health problems. Mathew lives 400 metres from the site. There was a concern that the hydrogen sulphide emissions would result in reducing Mathew’s life expectancy unless the level of emissions was addressed.

The claimant alleged the Environment Agency had failed to take all reasonable steps within its powers to address the levels of hydrogen sulphide emissions emanating from the landfill site. It was alleged this was a breach of ECHR Article 2 (right to life) and Article 8 (right to private and family life).

The High Court decision

The starting point in understanding the Court of Appeal decision is the declaration made by Fordham J in the High Court:

“In order for the Environment Agency to comply with its legal obligations, the Agency must implement the advice of Public Health England as expressed in the Fourth PHE Risk Assessment (published 5 August 2021), by designing and applying and continuing to design and apply such measures as, in the Agency’s regulatory judgment, will and do effectively achieve the following outcomes in relation to emissions of hydrogen sulphide from Walleys Quarry Landfill Site: (1) the reduction of off-site odours so as to meet, as early as possible and thereafter, the World Health Organisation half-hour average (5PPB); and (2) the reduction of daily concentrations in the local area to a level, from January 2022 and thereafter, below the US EPA Reference Value (1PPB) as the acceptable health-based guidance value for long-term exposure.”

He did not appear to rule on whether there was a breach of Article 2 or 8 (§64):

“Having granted that declaratory relief, I accept that it is not necessary – nor is it appropriate – for this Court to say that there is a current breach by the EA of its legal obligations.”

The Appeal

The first ground of appeal by the Environment Agency was the declaration made by Fordham J was inappropriate. It is not the role of the court to establish or determine what further action needed to be taken to restore levels of landfill emissions to acceptable levels. That was a matter reserved for the Environment Agency, as a specialist regulator.

The Court of Appeal agreed. It said the role of the court under the Human Rights Act 1998 is to determine whether a public authority is acting unlawfully. The focus should be on the actions, or the proposed action, of the public authority. Instead, the judge in the High Court sought to look forward and define the legal content of the Article 2 and 8 obligations, and to prescribe precise outcomes it had to reach within a set timeframe. This was contrary to the principles established in the European Court.

The second ground was that the judge erred in making a declaration where there was no finding of past or present breach of article 2 or 8, or any positive obligation of the Environment Agency.

The Court of Appeal again agreed. It said declaratory relief is flexible and “enables the courts to identify whether or not particular action or inaction would be unlawful and can also perform an ancillary role in, for example, clarifying the consequences of a finding of unlawfulness or dealing with any issues of public law that need to be resolved” (§81). In exceptional circumstances, an advisory declaration may be granted, but usually only to resolve an issue of public law and/or to grant an appropriate remedy where there has been a finding of an unlawful action by a public body.

For Article 8 claims, the court must first find that the public body is acting (or failing to act) or is proposing to act in a way which is unlawful. Once that finding is made, the full range of remedies available in judicial review, including a mandatory order and/or advisory declaration, are open. In this case, the judge had erred by in effect making a mandatory order without any finding of breach.

The third ground was a cross-appeal by the claimant, who said the court should have found that the Environment Agency was in breach of Article 2 and/or 8 having regard to the fact hydrogen sulphide levels had persistently remained above WHO guidelines from April to June 2021.

On the facts, the Court of Appeal disagreed. It said that the Environment Agency had accepted there was a serious problem at the site with emissions of gases and was seeking to address the problem. It had taken relevant action and had proposed further action. It had also required the operator to submit a revised risk assessment and landfill gas management plan. It had also sought advice from Public Health England. It continually reviewed matters. There was therefore no basis for inferring the Environment Agency was proposing to act in breach of its obligations under Article 8 of the Convention.

So what are the ‘positive’ takeaways?

Crucially, the High Court finding that Articles 2 and 8 ECHR were engaged was unchallenged; only that on the facts of the case the appellant was not in breach of its obligations.

That means there was no appeal against the High Court’s decision that (i) there was a real and immediate risk to life in Mathew’s case as a result of exposure to the current levels of hydrogen sulphide; or (ii) that the levels of hydrogen sulphide gave rise to adverse environmental pollution that had a direct effect on Mathew’s home, his family and private life and which attained the relevant minimum level of severity by reason of its intensity and duration as well as physical and mental effects.

That leaves the door open for those who have faced harm from environmental pollution to bring judicial review challenges and/or claims for damages.

Further the Court of Appeal accepts that in the context of regulation of industrial processes which give rise to a real and immediate risk to life, the obligation on the Environment Agency includes the positive obligation to take practical measures to safeguard citizens against the risks.

On the facts of this case, the Judge found the Environment Agency acted appropriately, so there was no breach. If the Environment Agency instead knew of a risk and ignored its obligations, it may well have been found to be in breach of Article 2 and/or 8.

Environmental claims based on human rights are a key trend in climate change litigation. Recently, ClientEarth has filed a challenge to the government’s Net Zero Strategy on the basis (amongst others) that it breaches section 3 of the Human Rights Act 1998, requiring legislation to be compatible with ECHR. As the link between public health and climate change related emissions becomes more clearly established scientifically, human rights related arguments in courts may prove key in holding public bodies to account.