R (on the application of Edwards and another) v Environmental Agency and others: environmental claims and the rule of law

On the UK Human Rights Blog, David Hart QC has written a number of informative posts about the Aarhus Convention, which governs access to environmental information, public participation in environmental decision-making and access to justice in environmental matters.  He has a helpful introduction to the Convention here.

His most recent post concerns one of the Convention's more important features: the limitation it places on the costs a claimant will incur in an environmental claim where they would otherwise be "prohibitively expensive".  In particular, he discusses the decision of the Supreme Court in R (on the application of Edwards and another) v Environmental Agency and others.

I have no argument with Mr Hart's authoritative analysis of the law.  Rather, my quarrel is with the idea that there should be a protective costs regime carved out for one area of the law.  Accordingly, I have left the following comment:

There is an obvious breach of the rule of law here.  Legislation should be general and apply equally unless there is a good point of principle otherwise.  Carving out a special costs restriction for one type of litigation (Environmental, in this case) is a flagrant breach of that principle.  No doubt environmental claims are important, but so too are medico-legal cases (which determine our quality of life and indeed life itself in some cases), commercial cases (which determine whether we can earn a living) and indeed potentially _any_ form of litigation depending on the circumstances and the limits of your imagination. 

Moreover, once an exception has been carved out, it provides a fertile source for litigation over whether any particular case falls within the exception.  There will no doubt be some cynical cases where an environmental peg is found for what is not really an environmental case at all, or not as intended by the Aarhus draftspeople anyway (see here for a good example of the possibility of litigation over the Aarhus margins). 

Then we have the equally bad problem identified by another commentator to Mr Hart's post: if one removes the risk of proceedings for bringing a claim, then the opportunity for what is at best opportunism and at worse blackmail is obvious.  Exactly this happened in New Zealand environmental law with its Resource Management Act, which allowed objections to planned development to be made by people who would not bear the cost of their objections failing, so a nice little earner (as they don't say in that country) was fashioned by those who figured out that they might have their objections bought off ... 

Of course, the rule of law also requires that citizens be able to bring proceedings to enforce their rights or clarify their legal position.  If the courts are too expensive for all but the smallest fraction of society to use, all the rights they supposedly uphold will be illusory.  But, going back to the first point, this applies to all rights and hence all litigation.  There is no justification for special regimes here and there - employment, family, environment, to name just three we presently have - because indigent but worthy claimants can be found everywhere. (Mrs Donoghue was one, for a start - and her case concerned neither environmental law, nor employment nor family ... )