Environmental tort; standing (locus standi); environmental justice; private nuisance; convergence of human rights and tort; human rights and environmental justice; European Court of Human Rights jurisprudence; statute and standing.
The debate regarding the role of civil liability as a means of environmental protection has been running for many years and shows no signs of running its course, as certain States press ahead with environmental liability regimes and the European Community continually shifts position. One of the central themes that has yet to be fully resolved concerns which parties should be in a position to take action in respect of environmental harm. Existing private-law mechanisms focus on individual loss, be it in the form of personal injuries or damage to property. This immediately limits the class of persons who may claim and focuses attention on the individual loss rather than the wider environmental harm. For example, members of the family home, other than the person enjoying title to the property, may be excluded from the protection afforded by the property torts, such as private and public nuisance, and trespass to land due to their lack of title. This theme links into a broader debate in that, beyond the family home, there is clearly limited capacity for individuals, or other interested parties, to seek remedies in respect of damage to the wider environment.
This issue is discussed within a wider European Union (EU) context, namely the long-running debate regarding the necessity for a European civil liability regime for environmental damage. These proposals culminated in a White Paper setting out a regime designed to overcome many of the drawbacks associated with the use of tort in this context. This included a proposal to afford standing to non-government organizations (NGOs) to seek a remedy where there was no private party able or willing to act. The issue of standing is crucial in this debate in that the effect of a regime would be limited if access to remedies was limited to traditional categories of claimant. In the USA, for example, the courts have been prepared to adopt a more liberal view of standing within the context of environmental legislation. However, as will be seen, in subsequent proposals, the EU appears to have backtracked on this original idea. The reasons for this uncertain state of affairs will be addressed below.
Furthermore, as might be expected, human rights jurisprudence is likely to have a major effect on the standing debate, as any restriction that appears to restrict access to justice could fall foul of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) on the right to an effective judicial remedy.
(2003) 12(3) Review of European Community and International Law, 284-294.