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but he wrote clearly and powerfully about the limits that in the protection of the environment, to the best of my
a state has in acting as an attorney general in the public recollection no one seriously challenged Greenpeace’s
interest for the protection of non-personal rights. He said ability to go to court in order to protect rights which were,
of public authorities: if you like, in the public domain but which did not belong
to Greenpeace as such.
Their statutory powers are limited and sometimes In other contexts it has been much more difficult to
unclear. As political creatures they must exercise the assert a right of standing to protect environmental assets,
discretion they have with an eye towards advancing or to enforce environmental obligations. I want to focus
and reconciling a broad variety of important social on the European Court of Justice, because it is important
goals, from preserving morality to increasing their in two aspects: first, in demonstrating the effectiveness
jurisdiction’s tax base. The present state of our of the system of law for protecting environmental
environment and the history of cautious application obligations, and secondly, and more significantly, in what
and development of environmental protection laws it says about the nature of the relationship between the
long on the books testify that the burdens of an state, public authorities and the individual citizen or
attorney general’s broad responsibility have associations of citizens.
apparently not left much manpower for the protection You will understand immediately that what I am talking
of nature. about raises issues of legitimacy, democracy and
accountability. In what circumstances can individuals or
In other words, frequently the state will not act to protect associations of individuals go to court to challenge acts
the environment because the state has other interests. In of the European Community which do not meet
carrying out a balancing exercise, the state will often Community obligations or international obligations in
choose not to act because other objectives, economic, relation to the environment? In what circumstances, to
social or whatever, tend to take priority. This seems be more specific, can a non-governmental organisation
particularly to be the case for societies that are built or an individual go to the European Court of Justice to
around the notion of a four- or five-year elective challenge a failure by, say, the European Commission or
democracy. the European Council to give proper effect to the
So the issue which arises is the nature of obligations that the European Community has to protect
environmental rights: who should have standing to take the environment?
proceedings, to enforce environmental obligations, when The context for this is that traditionally citizens’ suits
the state has failed to act? It is important to recall that – as they are sometimes called – have not been recognised
environmental rights are different from other kinds of in the European Community legal order, a legal order which
rights. For a start, they are in their very essence collective. is distinct from the national legal order. If the European
They are shared by all of us. We all have an interest in Community carries out an activity, for example lends on a
protecting the planet from global warming. It is not like construction project, which an individual citizen or which
protecting your own house from the acts of a next-door a non-governmental organisation believes to be
neighbour. environmentally harmful or inconsistent with the
There are also difficulties about identifying the precise environmental obligation of the Community, that citizen,
circumstances in which allegation of violations of such that organisation, that NGO cannot go to the national
rights may be actionable. There are substantive rights. courts to challenge the act of the European Commission
There are procedural rights. or of the European Council. It has to go, if anywhere, to
In the English context we have moved a long way in the European Court of Justice. So the question arises, is
domestic proceedings in allowing certain non- there a right of access to the European Court of Justice in
governmental organisations – and in some cases those circumstances?
individuals – to bring proceedings to the English courts Let us put this in context, go back to the early 1990s
to challenge a failure of the state to give effect to its and the UN’s Rio Conference on Environment and
environmental obligations. Development. The Rio Conference underscored the vital
4
Debbie Tripley and I were involved in a case that is importance of national remedies to challenge acts which
still among my favourites, when we went to court on behalf damage the environment or which violate environmental
of Greenpeace to protect from oil exploration activities a obligations. Principle 10 of the Rio Declaration states,
rather unknown (I hope I’m not being unfair) species of ‘Effective access to judicial and administrative proceedings,
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coral – lophelia pertusa – that was to be found at the including redress and remedy, shall be provided’. Of
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bottom of the North Sea. It was not a problem before course a question immediately arises – do ‘national
the English courts for Greenpeace to assert a right of remedies’ include European Community remedies?
standing. As a reputable organisation, with a legal interest In 1992, in its Fifth Environmental Action Programme, 7
the European Commission recognised that individuals and

4 Chief Executive, Environmental Law Foundation; Barrister, Fenners
Chambers, Cambridge.
5 R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd 6 h ttp://www.unep.or g/Document s.Multilingual/
Maurice Kay J, QBD, 5 November 1999, The Times 19 January 2000 Default.asp?DocumentID=78&ArticleID=1163.
(transcript available from Smith Bernal, CO/1336/99, or on Lexis). 7 http://ec.europa.eu/environment/actionpr.htm.

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