Stronger shade of green

The Environmental Rights Centre for Scotland (ERCS) has just celebrated its first birthday. Our vision is of a Scotland where every person’s right to live in a healthy environment is fully realised.

We are told that some of Scotland’s environmental laws are world-leading, but we also know they are often poorly implemented. Moreover, the unequal impacts of COVID-19 have demonstrated how human rights and environmental protection are inextricably linked. This has put pre-existing aspects of environmental rights in the spotlight, from global biodiversity loss to the importance of local access to good quality green space. And the climate emergency has not gone away!

Systemic environmental governance problems include poor enforcement of environmental and related planning law; limited public participation in the planning system; and access to justice being prohibitively expensive and in breach of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The environmental governance gap is exacerbated by Brexit, with the loss of oversight of the European Commission and the European Court of Justice. Now more than ever, we need a dedicated organisation to increase the understanding and capacity within communities and civil society of legal rights and remedies in environmental matters, and to advocate for policy and law reform.

Meeting the need

Out of this crucible of unmet need and with the support of Scottish Environment LINK, the forum for Scotland’s voluntary environment community, the Environmental Rights Centre for Scotland was formed.

Our mission is to assist members of the public and civil society to understand and exercise their rights in environmental law and to protect the environment. We will do this through:

• public education to increase awareness of legal rights and remedies in environmental matters;
• advice, assistance and representation to improve public participation in environmental decision-making;
• advocacy in policy and law reform to improve environmental law and access to justice on the environment; and
• strategic public interest litigation to enforce progress on key environmental issues and tackle systemic environmental problems.

Over the last year, as well as the mundane but necessary tasks of gaining charitable status, business planning and fundraising, we were able to pilot an advice service. Communities’ concerns included loss of green belt, overdevelopment in conservation areas, impact of wind farm constructions, damage of hill tracks on the landscape, avoidance of environmental impact assessments, breaches of planning controls, permitted development rights, statutory planning appeals, habitats regulations and damage to ancient woodland. For environmental organisations, we were able to advise on repeat planning applications threatening wild land area, planning applications for commercial peat extraction, the dilution of public participation in environmental decisions following temporary modifications to planning regulations, and criminal liability for climate protest actions.

We have also contributed to the National Taskforce for Human Rights Leadership on the incorporation of a human right to a healthy environment in a new Human Rights (Scotland) Act, and keenly await its recommendations due next month.

What next?

Having evaluated our pilot advice service, we are excited to be recruiting now for an in-house solicitor to provide free comprehensive legal advice in a way which is practical, meaningful and easily understood. They will also play a critical role in the development and implementation of our public education programme and advocacy to improve access to justice on the environment.

As well as working to secure the incorporation of a human right to a healthy environment in Scots law and supporting its effective implementation, we look forward to a consultation on an Environmental Court as part of the requirements of the UK Withdrawal from the European Union (Continuity) (Scotland) Act. A specialist court or tribunal creates an opportunity to develop expertise, reduce costs and increase the speed of dispute resolution to achieve better outcomes for communities and the environment. We also advocate for reform of reg 15 of the Civil Legal Aid Regulations to ensure individuals and groups can access legal aid for public interest environmental cases and address legal aid caps. Together these two initiatives would go a considerable way to achieving full compliance with the Aarhus Convention and reducing barriers to public interest litigation.

The first year of ERCS has been an exciting journey in finding our feet within the environmental sector, making connections with other rights-based organisations and introducing ourselves to community networks – all via Zoom, and building a team virtually who have not yet physically met!

This next year will be one of confidently being able to support communities for environmental justice:

• by working to address the unequal distribution of environmental problems and promoting everyone’s right to a healthy environment; and
• by advocating for fair, timely and affordable access to legal action as a last resort.

For further information on the Environmental Rights Centre for Scotland, visit our website: www.ercs.scot, or contact Shivali Fifield sfifield@ercs.scot