Cafe Scientifique Talk

I will be giving a talk titled "Environmental Justice - How can we use the law to achieve change?" at Cafe Scientifique, Falmouth Arts Centre 21 December 2006.

Materials to support the talk will be hosted at this site.

Further information from:

Clare Hearn 01326 310977 and

Isn't the law wonderful, in its purity and clarity of expression?

Here we have Principle 1 from the Rio Declaration 1992 (not actually law):

Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.

And from the United Nations Framework Convention on Climate Change - Article 3:

The parties should protect the climate system for the benefit of present and future generations of mankind.

What we don't relaise is the horse trading that lies behind the development of international law. Phillippe Sands QC has written persuasively about the manipulations that lay behind the Earth Summit, with the United States bringing a team of over 100 lawyers, whilst the Pacific States had a team in single digits.

More prosaically, the Environment Protection Act of 1990, section 33:

A person shall not deposit controlled waste

Unfortunately there are significant questions over how we a s a nation deliver environmental justice. According to the Environment Agency, there is a clear correlation between low environmental quality and social deprivation.

A recently completed report (Environmental Justice Project has suggested that, as a result of a survey, 95% of lawyers and NGO's do not think that the current system provides for environmental justice.
The two significant reasons are costs and judicial ignorance. There is also the limited nature of remedy. Where the criminal law is activated by virtue of a prosecution, a fine and/or imprisonment is the consequence of conviction. In certain circumstances a restoration order might also be made. There are other punishment options - perhaps disqualification from directorship, publicity, ASBOs...
Many lawyers feel that to combat judicial ignorance, there should be a specialist environmental court.
It hterefore seems that delivery and procedure are the stumbling blocks to environmentla justice. Substantive law is, in many respects, uncompromising.
There is a concept know as "strict liability", whereby for some crimes there is no need to prove intnet. Thus, Section 85 of the Water Resources Act states that a crime is committed if the defendant causes or knowingly permits pollution of controlled waters. There is no requirement to prove intention. It was under this provision that the Milford Haven Port Authority was prosecuted subsequent to the SEA EMPRESS hitting Wales.
Nor is there a lack of prospective prosecutors - Natural England, Environment Agency, Drinking Water Inspectorate, Health and Safety Commission, Local Authority, Port Health Authority and Private Prosecutions.
There are three main categories of legal action:
  • Prosecution
  • Civil Action
  • Judicial Review

Judicail Review is an interesting concept. It allows a group or individual to review an offical action or inaction for lack of constitutionality. However, with environmental claims it can be difficult of prove "standing". Environmental Judicial Reviews run at about 25 to 30 a year.

Day to day environmental issues are encompassed by part III of the Environmental Protection Act This covers noise, smoke, fumes, gas, dust, steam, insects and artificial lighting.

The Local Authority instigate the prosecution, having had an assessment of the nuisance by the Environmental Health Officer.

Wild Law
An extreme analysis of environmental justice is provided by Cormac Cullinan. Writing recently in Resurgance, he concluded:
It is time to face the fact that we are not going to stop destroying the planet with better technologies, better management techniques or more international treaties. The hard truth is that we need to embark on a radical re-evaluation of our governance structures. This will require us to set aside many of our cultural preconceptions and to develop ways of consulting with, and respecting, other members of the Earth community. It will require us to reinvent rituals that connect humans with the Earth and to develop successors to the shamans and wise elders who articulated the laws and mediated human relations with the rest fo the Earth community.

A current dilemma facing marine spatial planning is scallop dredging. According to the Marine Conservation Society (2006)

MCS is hugely disappointed at the lack of concrete measures being proposed today by Defra to protect the biodiversity-rich reefs of Lyme Bay. A considerable effort has been made by English Nature and Devon Wildlife Trusts to demonstrate the damage being done to one of the UK?s only soft corals, the pink sea fan, yet the government has ignored their advice to close off just 10.3% of the bay to stop destructive fisheries, and has instead called for even smaller voluntary closures to restrict scallop dredge boats. Despite having the same legally protected status as the golden eagle, marine life such as the pink sea fan is only afforded paper protection and voluntary compromises, because the public cannot see the damage that is being done.

Last night at the Falmouth SAC Advisory Group meeting we discussed the scallop dredging within the SAC. At time of writing our deliberations and conclusions remain confidential. The legal position is that DEFRA issue licences, and are the relevant authority to take action. In terms of the Precautionary Principle (Rio Declaration Principle 15 states

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. )

Does the precuationary principle apply to scallop dredging?

In terms of bio-diversity, scallop dredging destroys all sedentary sea life. The scallops regenerate, but nothing else does. There is also significant by-catch on virgin seabed, of up to 10%. Given that the scallop is traditionally a symbol of fertility, there is some irony.

On the other hand, scalloping is an important earner for inshore fishermen - it is suggested (,,1789620,00.html) that 25% of Brixham's landed income derives from the scallop. This income sustains a thriving community.

There may be a facility under existing legislation to challege scallop dredging within SAC waters, which I am working on at the moment. Local Sea Fish Committees have the ability to ban dredging out to 3 NM. As these Committes are a function of Local Government, there are obvious issues of local politics. Scallop dredging has been banned within the Estuary - see

And we mustn't forget the provisions of the Natural Environment and Natural Communities Act 2006 section 40:

Duty to conserve biodiversity

(1) Every public authority must, in exercising its functions, have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity.

The administrative situation is that DEFRA issue licneces for scallop dredging, which imposes an obligation on fishermen to submit to DEFRA monthly landing statistics. These licences cannot be unreasonably refused. The Sea Fisheries Committee suggest that as DEFRA is the relevant statutory authority, it is they who should take action. Notice the conflcit with the paragraph above.

My suggestion is that every effort be made to involve the fishing community in the bio-diversity debate, and seek to encourage an appreciation of truly sustainable fishery practices. So far as scallops are concerned, this means hand-picking by underwater divers.

Mind you, the market is surely wide open to develop an ROV type device that harvests scallops.