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1

A Critical Analysis of

the Contribution to Sustainable Development of

the Law and Practice on Public Participation in

the Authorisation of Radioactive Waste Disposal

Joseph Hoe Kiat Chun

A thesis submitted in fulfilment of

the requirements for the award of the degree of

Doctor of Philosophy

University College London

2002

2

Abstract

The thesis critically analyses the fairness and competence of aspects of the law

and practice relating to public participation in the Environment Agency’s

authorisation of radioactive waste disposal. It argues that the primary objective

of environmental decision-making is to make a contribution to sustainable

development, and that sustainable development is best understood as a

conception of distributive justice. It then examines, from a procedural

perspective, the contribution to sustainable development made by the Agency’s

decisions to authorise the disposal of radioactive waste at Atomic Weapons

Establishments at Aldermaston and Burghfield, at eight magnox power stations

throughout England and Wales, and at the Berkeley Centre; and of its re-

examination of the authorisations for disposal of radioactive wastes from

Sellafield. The insight offered by the empirical examination is that while the law

imposes on administrative decision-makers a minimum standard of fairness and

competence in public participation, it also inhibits in some important respects,

the further development of a practice towards fairer and more competent

participation, thereby indirectly constituting an ‘upper limit’ to the further

contribution of environmental decision-making to sustainable development.

3

Table of Contents

ABSTRACT......................................................................................................... 2

TABLE OF CONTENTS...................................................................................... 3

TABLE OF CASES ............................................................................................. 8

TABLE OF UNITED KINGDOM STATUTES .................................................... 12

TABLE OF STATUTORY INSTRUMENTS....................................................... 13

TABLE OF EUROPEAN UNION INSTRUMENTS............................................ 14

TABLE OF INTERNATIONAL INSTRUMENTS................................................ 15

PART ONE :: UNDERSTANDING THE CONTRIBUTION OF PUBLIC

PARTICIPATION TO THE QUALITY OF ENVIRONMENTAL DECISIONS ..... 16

CHAPTER 1: AN OVERVIEW OF THE THESIS............................................... 17

CHAPTER 2: THE ETHICAL FOUNDATION OF ENVIRONMENTAL

DECISION-MAKING ......................................................................................... 28

THE NATURE OF ENVIRONMENTAL CONCERN....................................................... 28

Anthropocentric Environmental Ethics........................................................ 28

Valuing Nature for its Own Sake ................................................................ 39

Biocentrism ............................................................................................. 40

Ecocentrism ............................................................................................ 41

Deep Ecology ...................................................................................... 44

NON-ANTHROPOCENTRIC APPROACHES TO ENVIRONMENTAL DECISION-MAKING ..... 47

ANTHROPOCENTRIC ENVIRONMENTAL LAW AND DECISION-MAKING ........................ 49

International Law on Nature Conservation ................................................. 50

Animal Welfare and Nature Conservation in England ................................ 54

CONCLUSION.................................................................................................... 59

CHAPTER 3: SUSTAINABLE DEVELOPMENT AS JUSTICE ........................ 61

THE EMERGENCE OF SUSTAINABLE DEVELOPMENT .............................................. 61

SUSTAINABLE DEVELOPMENT AS DISTRIBUTIVE JUSTICE....................................... 70

4

Justice Versus Humanity ............................................................................ 71

Intra-generational Justice ........................................................................... 73

Meeting Basic Needs.............................................................................. 74

Satisfying Aspirations for a Better Life .................................................... 76

Intergenerational Justice ............................................................................ 77

The Interdependence between Intra-generational and Intergenerational

Justice ........................................................................................................ 79

MOTIVATION FOR SUSTAINABLE DEVELOPMENT ................................................... 81

The Common Interest................................................................................. 81

CONCLUSION.................................................................................................... 84

CHAPTER 4: PUBLIC PARTICIPATION’S CONTRIBUTION TO

SUSTAINABLE DEVELOPMENT..................................................................... 87

SUSTAINABLE DEVELOPMENT AND PUBLIC PARTICIPATION .................................... 88

The Exercise of Ethical Judgements .......................................................... 91

The Social Construction of Knowledge....................................................... 95

Contribution to Scientific Knowledge....................................................... 97

Contribution to Local and Contextual Knowledge ................................. 106

Contribution to Evidentiary Judgements ............................................... 107

CONCLUSION.................................................................................................. 111

PART TWO :: ASSESSING PUBLIC PARTICIPATION IN THE

AUTHORISATION OF RADIOACTIVE WASTE DISPOSAL.......................... 113

CHAPTER 5: SUSTAINABLE DEVELOPMENT AND THE REGULATION OF

RADIOACTIVE WASTE DISPOSAL IN ENGLAND ....................................... 114

TRANSPOSING SUSTAINABLE DEVELOPMENT INTO A NATIONAL STRATEGY............ 114

SUSTAINABLE DEVELOPMENT IN THE UNITED KINGDOM....................................... 115

The EU Influence...................................................................................... 116

The National Sustainable Development Strategies .................................. 122

This Common Inheritance..................................................................... 122

A Better Quality of Life .......................................................................... 125

THE ENVIRONMENT AGENCY’S CONTRIBUTION TO SUSTAINABLE DEVELOPMENT ... 127

Costs and Benefits ................................................................................... 130

THE AUTHORISATION OF RADIOACTIVE WASTE DISPOSAL ................................... 132

5

PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISION-MAKING BY THE ENVIRONMENT

AGENCY......................................................................................................... 135

CONCLUSION.................................................................................................. 137

CHAPTER 6: AN OVERVIEW OF THE CASE STUDIES AND METHOD OF

STUDY ............................................................................................................ 139

THE CASE STUDIES ........................................................................................ 139

The AWE Decision ................................................................................... 139

The Magnox Decision............................................................................... 141

The Sellafield Decision............................................................................. 141

THE CRITERIA FOR EVALUATING PUBLIC PARTICIPATION..................................... 143

Fair Public Participation............................................................................ 146

Attendance............................................................................................ 146

Agenda and Rules ................................................................................ 148

Facilitator/Moderator ............................................................................. 148

Competent Public Participation ................................................................ 149

Theoretical Discourse ........................................................................... 151

Practical Discourse ............................................................................... 153

THE INHERENT LIMITATIONS OF PUBLIC PARTICIPATION ...................................... 154

FAIR AND COMPETENT PUBLIC PARTICIPATION AS AN APPROXIMATE INDICATOR OF

SUBSTANTIVE QUALITY OF ENVIRONMENTAL DECISION-MAKING........................... 157

CHAPTER 7: THE FAIRNESS OF PUBLIC PARTICIPATION IN THE


(A) ATTENDANCE....................................................................................... 159

Radioactive Substances Act 1993............................................................ 159

Local Inquiry ......................................................................................... 160

Common Law ........................................................................................... 163

European Convention for the Protection of Human Rights and Fundamental

Freedoms ................................................................................................. 167

Aarhus Convention................................................................................... 172

Environment Agency Practice .................................................................. 176

Local Inquiry ......................................................................................... 179

(B) AGENDA AND RULES............................................................................. 180


Local Inquiry ......................................................................................... 182

6

Common Law ........................................................................................... 184


Freedoms ................................................................................................. 187



(C) FACILITATOR/MODERATOR.................................................................... 193


Common Law ........................................................................................... 194


Freedoms ................................................................................................. 195



CONCLUSION.................................................................................................. 201

CHAPTER 8: THE COMPETENCE OF PUBLIC PARTICIPATION IN THE


(A) THEORETICAL DISCOURSE .................................................................... 207

Statutory Requirements............................................................................ 207

Access to Information ........................................................................... 207

Knowledge Construction ....................................................................... 210

Common Law ........................................................................................... 212



European Convention on Human Rights and Fundamental Freedoms .... 214









(B) PRACTICAL DISCOURSE ........................................................................ 231

Statutory Requirements............................................................................ 231

Common Law ........................................................................................... 234

7

European Convention on Human Rights and Fundamental Freedoms .... 237



CONCLUSION.................................................................................................. 249

CHAPTER 9: TOWARDS FAIRER AND MORE COMPETENT PUBLIC

PARTICIPATION IN DECISION-MAKING ...................................................... 256

BIBLIOGRAPHY............................................................................................. 264

OFFICIAL DOCUMENTS AND REPORTS............................................................... 264

BOOKS AND ARTICLES..................................................................................... 270

8

Table of Cases

Albert & Le Compte v. Belgium (1983) 5 EHRR 533.

Associated Provincial Picture Houses Ltd. v. Wednesbury Cor[1948] 1 KB 223.

Athanassoglou & Ors. v. Switzerland (2001) 31 EHRR 13.

Balmer-Schafroth & Ors. v. Switzerland (1998) 25 EHRR 598.

Bates v. Lord Hailsham of St. Marylebone [1972] 3 All ER 1019.

Berkeley v. Secretary of State for the Environment & Ors. [2000] 3 WLR 420.

Benthem v. The Netherlands (1986) 8 EHRR 1.

Binney & Anscomb v. Secretary of State for the Environment & Secretary of

State for Transport [1984] JPL 871.

Board of Education v. Rice [1911] AC 179.

Brind & ors. v. Secretary of State for the Home Department [1991] 1 All ER 720.

Bugdaycay v. Secretary of State for the Home Department [1987] AC 514.

Bryan v. UK, (1995) 21 EHRR 342.

Bushell & anor. v. Secretary of State for the Environment [1981] AC 75.

Campbell & Fell v. UK (1985) 7 EHRR 165.

Commission of the European Communities v. Federal Republic of Germany,

Case C-57/89, [1991] ECR I-883.

Commission of the European Communities v. Italy, Case 92/79, [1980] ECR

1115.

Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180.

Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER

935.

Doody v. Secretary of State for the Home Department [1993] 3 All ER 92.

Emanuela Marchiori v. Environment Agency [2002] EWCA Civ 3.

Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 2 All

ER 865.

Fischer v. Austria (1995) 20 EHRR 349.

Friends Provident Life & Pensions Ltd. v. Secretary of State for Transport, Local

Government and Regions [2001] EWHC Admin 820.

Ford v. Wiley (1889) 23 QBD 203.

Fredin v. Sweden (1990) 13 EHRR 784.

Greenpeace Schweiz & Ors. v. Switzerland (1997) 23 EHRR CD 116.

Guerra & Ors. v. Italy (1998) 26 EHRR 357.

9

Hatton & Ors. v. UK (2002) 34 EHRR 1.

König v. Germany (No. 1) (1979-80) 2 EHRR 170.

Kraska v. Switzerland (1994) 18 EHRR 188.

Laura Cummins & Ors. v. London Borough of Camden & Secretary of State for

the Environment Transport and the Regions [2001] EWHC Admin 1116.

H Sabey & Co. Ltd. v. Secretary of State for the Environment & ors. [1978] 1 All

ER 586.

Leander v. Sweden (1987) EHRR 433.

Lloyd v. McMahon [1987] AC 625.

Lopez Ostra v. Spain (1994) 20 EHRR 277.

Mahon v. Air New Zealand Ltd. & ors. [1984] 3 All ER 201.

McGinley & Egan v. UK (1999) 27 EHRR 1.

Merlin v. British Nuclear Fuels plc [1990] 2 QB 557.

O’Reilly v. Mackman [1983] 2 AC 237.

Piersack v. Belgium (1983) 5 EHRR 169.

Powell & Rayner v. UK (1990) 12 EHRR 355.

Puhlhofer & anor. v. Hillingdon London Borough Council [1986] 1 All ER 467.

R. v. Bow Street Metropolitan Stipendiary Magistrate & ors., ex p. Pinochet

Ugarte (No 2) [1999] 1 All ER 577.

R. v. Durham County Council & ors., ex p. Huddleston [2000] 1 WLR 1484.

R. v. Environment Agency, ex p. Marchiori & NAG Ltd. [2001] EWHC Admin 267.

R. v. Gaming Board for Great Britain, ex p. Kingsley, (CO/2506/94), 11th January

1996, unreported.

R. v. Gough [1993] AC 646.

R. v. Her Majesty’s Inspector of Pollution & anor., ex p. Greenpeace Ltd. (No. 2)

[1994] 4 All ER 329.

R. v. Local Government Board, ex p. Arlidge [1015] AC 120.

R. v. Ministry of Defence, ex p. Smith, [1996] QB 517.

R. v. Panel of Take-overs and Mergers, ex p. Guinness plc [1989] 1 All ER 509.

R. v. Secretary of State for the Environment & anor., ex p. Kirkstall Valley

Campaign Ltd. [1996] 3 All ER 304.

R. v. Secretary of State for the Environment & Ors., ex p. Greenpeace & anor.

[1994] 4 All ER 352.

R. v. Secretary of State for Foreign Affairs, ex p. World Development Movement

[1995] 1 All ER 611.

10

R. v. Secretary of State for Trade and Industry, ex. p. Duddridge [1995] Env LR

151 (HC)

R. v. Secretary of State for Trade and Industry, ex p. Duddridge [1996] Env LR

325 (CA).

R. v. Secretary of State for Transport, ex p. London Borough of Richmond upon

Thames [1995] Env LR 390.

R. v. Secretary of State for Transport, ex p. Richmond upon Thames London

Borough Council & ors. (No. 4) [1996] 4 All ER 93 (HC).

R. v. Secretary of State for Transport, ex p. Richmond upon Thames London

Borough Council & ors. (No. 4) [1996] 4 All ER 903 (CA).

R. v. Somerset County Council, ex p. Fewings & ors [1995] 3 All ER 20.

R. v. Swale Borough Council & anor., ex p. Royal Society for the Protection of

Birds [1991] JPL 39.

R. (Friends of the Earth Ltd. & Greenpeace Ltd.) v. Secretary of State for the

Environment, Food and Rural Affairs & Secretary of State for Health [2001]

EWHC Admin 914.

R. (on the application of Adlard & Ors.) v. Secretary of State for Environment,

Transport & Regions [2002] EWCA Civ 671.

R. (on the application of Aggregate Industries UK Ltd.) v. English Nature & the

Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC

Admin 908.

R. (on the application of Alconbury Developments Ltd.) v. Secretary of State for

the Environment, Transport and the Regions & other cases [2001] 2 All ER

929.

R. (on the application of Vetterlein) v. Hampshire County Council & Ors. [2001]

EWHC Admin 560.

Re Friends of the Earth [1988] JPL 93.

Re H. K. (An Infant) [1967] 2 QB 617.

Ridge v. Baldwin [1964] AC 40.

Ringeisen v. Austria (No. 1) (1979-80) 1 EHRR 455.

Russell v. Duke of Norfolk [1949] 1 All ER 109.

Schuler-Zgraggen v. Switzerland (1993) 16 EHRR 405.

Sinfield & Ors. v. London Transport Executive [1970] 2 All ER 264.

X v. Switzerland, App. No. 9000/80 (1982) 28 D & R 127.

World Wildlife Fund & Ors. v. Autonome Provinz Bozen & Ors., Case C-435/97,

11

[1999] ECR I-5613.

Zander v. Sweden (1994) 18 EHRR 175.

Zumtobel v. Austria (1994) 17 EHRR 116.

12

Table of United Kingdom Statutes

Countryside and Rights of Way Act 2000.

Environment Act 1995.

Food Standards Act 1999.

Freedom of Information Act 2000.

Health and Safety at Work Etc. Act 1974.

Highways Act 1980.

National Parks and Access to the Countryside Act 1949.

Nuclear Installations Act 1965.

Protection of Animals Act 1911.

Radioactive Substances Act 1993.

Town and Country Planning Act 1990.

Wildlife and Countryside Act 1981.

Wildlife and Countryside Act 1981.

Wild Mammals (Protection Act) 1996.

13

Table of Statutory Instruments

Conservation (Natural Habitats etc.) Regulations 1994, SI 1994/2716.

Countryside and Rights of Way Act 2000 (Commencement No. 1) Order 2001, SI

2001/114.

Environmental Information Regulations 1992, SI 1992/3240.

Ionising Radiation Regulations 1999, SI 1999/3232.

Nuclear Reactors (Environmental Impact Assessment for Decommissioning)

Regulations 1999, SI 1999/2892.

Radioactive Substances (Basic Safety Standards) (England and Wales)

Direction 2000.

Town and Country Planning (Assessment of Environmental Effects) Regulations

1988, SI 1988/1199.

Town and Country Planning (Environmental Impact Assessment) (England and

Wales) Regulations 1999, SI 1999/293.

14

Table of European Union Instruments

Treaties

Consolidated Version of the Treaty Establishing the European Community [1997]

OJ C340/173.

Single European Act 1987 [1987] OJ L169/1.

Treaty of Amsterdam Amending the Treaty on European Union, the Treaties

Establishing the European Communities and Certain Related Acts 1997

[1997] OJ C340/1.

Treaty on European Union 1992 [1992] OJ C191/1.

Treaty Establishing the European Atomic Energy Community 1957, 298 UNTS 3.

Directives

Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds

[1979] OP L103/1.

Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects

of certain public and private projects on the environment [1985] OJ L175/40.

Council Directive 90/313/EEC of 7 June 1980 on the freedom of access to

information on the environment [1990] OJ L158/56.

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural

habitats and of wild fauna and flora [1992] OJ L206/7.

Council Directive 96/29/Euratom of 13 May 1996, laying down basic safety

standards for the protection of the health of workers and the general public

against the dangers arising from ionising radiation [1996] OJ L159/1.

Resolutions

European Parliament resolution on the problem of nuclear safety fifteen years

after the Chernobyl accident, and its health consequences, Minutes of

03/05/2001 - Provisional Edition, B5-0321, 0322, 0323, 0324 and 0325/2001.

15

Table of International Instruments

Action Plan for the Human Environment (1972) 11 ILM: 1421.

Agenda 21 (1992) 31 ILM 874.

Convention for Biological Diversity (1992) 31 ILM 822.

Convention on the Conservation of European Wildlife and Natural Habitats 1979,

ETS/104.

Rio Declaration on Environment and Development (1992) 31 ILM 881.

Stockholm Declaration on the Human Environment (1972) 11 ILM 416.

Universal Declaration of Human Rights, 1948, UN Doc. A/810, at 71.

United Nations Economic Commission Convention on Access to Information,

Public Participation in Decision-making and Access to Justice in

Environmental Matters 1998, ECE/CEP/43.

World Charter for Nature 1982 (1983) 23 ILM 455.

16

PART ONE :: UNDERSTANDING THE CONTRIBUTION OF

PUBLIC PARTICIPATION TO THE QUALITY OF

ENVIRONMENTAL DECISIONS

This thesis is divided into two parts. In this, the first Part, I lay the groundwork

for the empirical work that follows in the second Part. After an overview of the

thesis in the next chapter, I identify the nature of the environmental concerns that

form the subject of public environmental decision-making, and argue that

environmental decision-making is rightly anthropocentric, and in particular aims

to contribute to sustainable development. I show that sustainable development

is essentially concerned with the intra-generational and intergenerational equity

of access to natural resources, and public participation, particularly fair and

competent participation, in environmental decision-making has a potentially

valuable contribution to make to the achievement of intra-generational and

intergenerational equity in this regard.

17

Chapter 1: An Overview of the Thesis

We live in environmentally critical times, and the importance of improving the

substantive quality of our environmental decisions cannot be overestimated.

According to the World Wide Fund for Nature, there has been an overall decline

of about 37 percent in the abundance of forest, freshwater, and marine species;

this decline is a general indicator of the general decline in the state of the world’s

natural ecosystems. Since the 1980s, humanity has been running an ecological

deficit with the Earth; in 1999, per capita consumption of renewal natural

resources overshot the Earth’s biologically productive capacity by about 20

percent.1 Poverty and excessive consumption, the “twin evils of humankind”

continue to put pressure on our environment.2 The growing list of pressures

includes population growth, anthropogenic emissions of carbon dioxide,

freshwater shortages, the over-harvesting of renewable natural resources, and

biodiversity loss.3

In England and Wales, pressing environmental problems include climate change;

habitat loss; and rising quantities of wastes.4 Although steps are being taken to

address some of these environmental problems, they continue to loom large. If

present trends are allowed to continue, we can expect a rapid decline in the

environmental conditions necessary for continued human existence.

Public participation is now generally considered an essential component of

environmental decision-making. Yet, aside from some notable exceptions such

as in the area of planning law, environmental law generally does not provide for

mandatory public participation in environmental decision-making. Where public

consultation is a requirement, the details of such consultation are often left to the

discretion of the administrative decision-maker, subject only to the supervision of

a judiciary to ensure that decisions are not manifestly unreasonable in the

1 World Wide Fund for Nature, Living Planet Report 2002 (Gland, Switzerland: WWF, 2002), p. 4.2 United Nations Environment Programme, Global Environmental Outlook 3: Past Present and

Future Perspectives (Nairobi: UNEP, 2002), p. xx.3 Ibid., Ch. 2.4 Environment Agency, Environment 2000 and Beyond (undated). As at 17 June 2002, online at

http://www.environment-agency.gov.uk/yourenv/129596/130001/?lang=_e&region=.

18

Wednesbury5 sense. Public participation in environmental decision-making is

also enhanced by the requirements of administrative law and human rights

legislation, but these requirements exist primarily to protect individual interests,

including property rights, rather than common interests. This sometimes works

against the protection of the environment. In any case, much of the public law

literature that advocate greater public participation in administrative decision-

making focuses on the contribution of public participation to the process values

of openness and accountability, and consequently the legitimacy of the decision,

rather than on its contribution to the quality of outcomes.6

The idea that public participation can contribute to better outcomes is not new,7

even within the legal literature.8 This thesis builds on this focus on the

contribution of public participation in environmental decision-making to better

substantive outcomes, particularly the achievement of sustainable development.

It adopts an interdisciplinary approach by drawing on developments taking place

outside law to understand the limitations of orthodox administrative decision-

making. It also critically evaluates, through case studies, the contribution to

sustainable development of the law and practice relating to public participation in

the authorisation of radioactive waste disposal. Similar assessments have been

carried on the quality of public participation in environmental decision-making.

Forester used the ideal speech situation to evaluate planning practice,9 while

Kemp used it to assess the legitimacy of the Windscale Inquiry,10 and

subsequently co-authored a study on the legitimacy of the Sizewell B Inquiry.11

5 Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1948] 1 KB 223.6 See, for example, Prosser, T., “Towards a Critical Public Law” (1982) Journal of Law and

Society 9(1): 1.7 For example, the competence of public participation in environmental decision-making has

been empirically explored in Coenen, F. H. J. M., Huitema, D., and O’Toole, L. J. O. Jr., (eds.),

Participation and the Quality of Environmental Decision Making (Dordrecht, The Netherlands:

Kluwer Academic Publishers, 1998).8 See for example, Steele, J., “Participation and Deliberation in Environmental Law: Exploring a

Problem-solving Approach” (2001) Oxford Journal of Legal Studies 21(3): 415, 417.9 Forester, J., “Critical Theory and Planning Practice”, in Forester, J., (ed.), Critical Theory and

Public Life (Cambridge, Massachusetts: MIT Press, 1985), p. 202.10 Kemp, R., “Planning, Public Hearings, and the Politics of Discourse”, in Forester, J., (ed.),

Critical Theory and Public Life, ibid., p. 177.11 O’Riordan, T., Kemp, R., and Purdue, M., Sizewell B: an Anatomy of the Inquiry (Basingstoke:

19

Wynne In the area of law, Palerm used Webler’s criteria for fairness and

competence to evaluate the provisions of the Aarhus Convention.12

The thesis firstly examines in Part One, the potential contribution of public

participation in environmental decision-making to sustainable development, then

goes on in Part 2 to critically evaluate in respect of the Environment Agency’s

authorisation of radioactive waste disposal, the extent to which the law and

Agency practice promote (or impede) participation.

After an overview of the thesis in Chapter 1, I begin my examination of the

nature of environmental decision-making with a consideration and rejection in

Chapter 2, of non-anthropocentric ethics and approaches to environmental

decision-making in the public sphere. In non-anthropocentric environmental

ethics, humans see nature through the ‘eyes’ of nature rather than through

human eyes. Through a non-anthropocentric lens, living organisms and even

whole ecosystems have intrinsic worth, i.e., they are valuable in their own right

independent of any value that humans care to place on them, indeed even

independent of the existence of humans. Just as some philosophers have

argued for non-anthropocentric conceptions of environmental ethics,13 others

have advocated non-anthropocentric legal approaches to environmental

protection, either by giving natural objects legal rights,14 or by conferring legal

protection on the environment irrespective of human benefit.15 It has also been

suggested that international law has already begun to shift to a non-

Macmillan Press, 1988).12 Palerm, J. R., “Public Participation in Environmental Decision Making: Examining the Aarhus

Convention” (1999) Journal of Environmental Assessment Policy and Management 1(2): 229.13 For an example of biocentrism, see Taylor, P., in Respect for Nature: a Theory of

Environmental Ethic (Princeton, New Jersey: Princeton University Press, 1986). For an example

of ecocentrism, see Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement. A

Summary” (1973) Inquiry 16: 95); and Devall, B., and Sessions, G., Deep Ecology: Living as if

Nature Mattered (Salt Lake City: Peregrine Smith Books, 1985).14 Stone, C. D., Should Trees Have Legal Standing? Towards Legal Rights for Natural Objects

(1972: Palo Alto, California: Tioga Publishing Company, 1988).15 Tribe, L. H., “Ways Not to Think about Plastic Trees: New Foundations for Environmental Law”

(1974) Yale Law Journal 83(7): 1315; and Wilkinson, D., “Using Environmental Ethics to Create

Ecological Law” in Holder, J., and McGillivray, D., (eds.), Locality and Identity: Environmental

Issues in Law and Society (Aldershot: Dartmouth Publishing Company, 1999), p. 17.

20

anthropocentric ethic in its approach to nature conservation.16 My examination

of international17 and English18 nature conservation law show that even in an

area of law where a non-anthropocentric ethic is most likely to take root,

environmental decision-making remains very much anthropocentric, albeit more

enlightened. Finally, I conclude that the case for shifting to a non-

anthropocentric environmental ethic or approach to environmental decision-

making is not compelling and may even be counterproductive.

I examine the anthropocentric environmental ethic in Chapter 3. Under an

anthropocentric worldview, the environment, the subject of environmental

decision-making, is worthy of consideration in decision-making because of its

value to us. Our very existence depends on nature providing life support

services such as air and water and continuing in a habitable state. The

environment also plays a vital role in the quality of our lives; it provides the raw

materials, energy and waste sinks, necessary for meeting our needs. Aside from

its instrumental value, the environment also has inherent value, i.e., its very

existence confers human benefit. For example, nature is the spontaneous force

that continues to intrigue, inspire and overwhelm humans and is a source of

spiritual, aesthetic and intellectual value.

Since the United Nations Conference on the Human Environment 1972,19 the

anthropocentric ethic of sustainable development has emerged as an

overarching framework for global and domestic environmental policy. Although

not the first to advocate it, the World Commission for Environment and

Development in their report, Our Common Future,20 pushed the concept into the

16 See D’Amato, A., and Chopra, S. K., “Whales: their Emerging Right to Life” (1991) American

Journal of International Law 85(1): 21; Emmenegger, S., and Tschentscher, A., “Taking Nature’s

Rights Seriously: the Long Way to Biocentrism in Environmental Law” (1994) The Georgetown

International Environmental Law Review 6: 545; and Gillespie, A., International Environmental

Law, Policy and Ethics (Oxford: Clarendon Press, 1997), pp. 127-36.17 Such as the World Charter for Nature 1982 (1983) 23 ILM 455; and the Convention for

Biological Diversity 1992 (1992) 31 ILM 822.18 Such as the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection Act) 1996.19 Hereinafter “Stockholm Conference”.20 World Commission on Environment and Development, Our Common Future (Oxford: Oxford

University Press, 1987).

21

fore. The report, from which the subsequent Rio Declaration on Environment

and Development 199221 draw heavily, linked failures of the environment with

failures in existing development strategies, arguing that environmental decisions

were inseparable from developmental questions since the common aim of both

was the improvement of human welfare. Environmental concerns and

developmental strategies therefore had to be integrated.

Intra-generational and intergenerational equity constitute the core of sustainable

development. As the World Commission on Environment and Development22

pointed out, the failures of the environment and development are rooted in the

disparity in economic and political power and called for greater intra-generational

and intergenerational equity so that the present and future needs of the human

species can be met. To achieve sustainable development, priority must be given

to meeting present basic needs. The pursuit of aspirations must come after the

meeting of basic needs, and take place within ecological limits so as not to

jeopardize the ability of future generations to meet their needs.

In Chapter 4, I consider how and why public participation in environmental

decision-decision-making contributes to the achievement of sustainable

development. Principle 10 of the Rio Declaration declares that “[e]nvironmental

decisions are best handled with the participation of all concerned citizens, at the

relevant level”, but at first blush, there does not seem to be any necessary

correlation between desired environmental outcomes and public participation.

Notably, Goodin has drawn attention to the distinction between theories of value

and theories of agency, and argued that there is no inherent reason why any

particular decision-making process should inherently be more likely than others

to lead to desired outcomes.23 In a similar vein, Saward argued that potential

conflict existed between substantive ecological values and democratic ones.24

Some writers have even argued that as individuals are most likely to act in their

21 Report of the United Nations Conference on Environment and Development, Annex I (1992)

31 ILM 881. Hereinafter “Rio Declaration”.22 Hereinafter “WCED”.23 Goodin, R. E., Green Political Theory (Cambridge: Polity Press, 1992).24 Saward, M., “Green Democracy”, in Dobson, A., and Lucardie, P., (eds.), The Politics of

Nature: Explorations in Green Political Theory (London: Routledge, 1993), p. 63.

22

own interests, to the detriment of the common good, sound environmental

decisions can only come about by benign forms of authoritarian decision-making

prepared to coerce the public to act in the common interest.25

It is true that public participation in environmental decision-making, understood

as a vehicle for the pursuit of narrow individual or sectoral interests, may not

promote environmental outcomes, particularly when participants have unequal

bargaining power or influence. Goodin, et al, associate greater participation in

decision-making with greater responsiveness to the narrow self-interest of

participants, and therefore consider that greater public participation does not

necessarily promote environmental decision-making in the common interest. On

the other hand, political theory, supported by limited empirical evidence,

suggests that participants in open-ended discursive environmental decision-

making are more likely to internalise one another’s concerns and arrive at ethical

judgements in terms of the generalizable common good.26 These judgements

embody values that disclose what individuals, communities, and humanity

consider, or ought to consider, important. Values emerge from social interaction,

and public deliberation in environmental decision-making provides a forum for

such interaction.

Public discourse also aids the construction of reliable knowledge. Knowledge

can come from a number of sources. The most authoritative source of

knowledge is scientific knowledge, knowledge constructed from scientific

methods. Anecdotal or local knowledge, personal to individuals or groups, may

25 Heilbroner, R., An Inquiry into the Human Prospect (New York: Norton, 1974); and Hardin, G.,

“The Tragedy of the Commons” (1968) Science 162: 1243; and Ophuls, W., Ecology and the

Politics of Scarcity: Prologue to a Political Theory of the Steady State (San Francisco: Freeman,

1977).26 See Sagoff, M., The Economy of the Earth: Philosophy, Law and the Environment (Cambridge:

Cambridge University Press, 1988); Dryzek, J., Discursive Democracy: Politics, Policy, and

Political Science, (Cambridge: Cambridge University Press, 1990); and Saward, M., supra. See

also, Barry, J., “Sustainability, Political Judgement and Citizenship: Connecting Green Politics

and Democracy”; Dobson, A., “Discursive Democracy and the Claims of Green Politics”; and

Eckersley, R., “Greening Liberal Democracy: the Rights Discourse Revisited”, in Doherty, B., and

de Geus, M., (eds.), Democracy and Green Political Thought: Sustainability, Rights and

Citizenship (London: Routledge, 1996), pp. 115 and 132, and 212 respectively.

23

be less authoritative but is no less valid as a source of knowledge. After all, who

knows better than women, youth and children their problems and needs that are

often different from those of men and adults respectively? Similarly, indigenous

peoples may apply local remedies to problems that scientists do not know about

or cannot understand. Different social groups see problems from a different

perspective and offer solutions that are unique to their perspective. The

contribution of different knowledge and different ways of knowing from a wide

diversity of sources and perspectives enables knowledge for environmental

decision-making to be more reliably grounded.

The theoretical framework established in Part One prepares the stage for a

critical evaluation, in Part Two, of public participation in the authorisation of

radioactive waste disposal. In Chapter 5, I set out the case studies in context

Chapter 5 by considering how the concept of sustainable development has been

understood and transposed into UK environmental policy. I note that the

government’s sustainable development strategy has been to emphasise

resource productivity as the engine for continued economic growth in order to

improve the quality of life for all, rather than deal with the awkward issues of

intra-generational and inter-generational inequity in access to natural resources.

This politically expedient strategy of achieving sustainable development through

national economic growth, coupled with a predisposition for a reductionistic and

risk-taking approach to innovation and technology, subordinate environmental

protection and improvement to economic growth and drive a systematic bias in

favour of the continual expansion and intensification of access to finite natural

resources, often in blatant disregard for intra-generational and intergenerational

equity.

I begin Chapter 6 with an introduction to the various case studies. All three case

studies relate to the regulation of radioactive waste disposal by the Environment

Agency of England and Wales,27 the key environmental protection agency for

both countries of the United Kingdom. The agency is an ideal subject for

empirical study because its statutory principal aim is the protection of the

environment so as to contribute to sustainable development.28 As such, the

27 Hereinafter “Environment Agency”.28 Environment Act 1995, s. 4(1).

24

Agency more holistically perceives itself as the “champion for sustainable

development”29 rather than a mere environmental regulator. It has also

consulted the public extensively on how its provision for public participation in its

decision-making in selected areas can be improved, and is reviewing and

experimenting with new ways of involving the public in its decision-making.

The authorisation of radioactive waste disposal is also an apposite choice for

study. When radioactive wastes are discharged into the environmental media

beyond the assimilation capacity of these media, they begin to accumulate in the

environment, often over large areas, and for a very long time. This accumulation

of may disrupt the ecosystem and thereby adversely interfere with the

environment’s continued ability to render life support functions to us. Natural

resources, such as flora and fauna, that are contaminated with radioactivity also

pose a potentially serious threat to human health and consequently become

inaccessible for other needs.

It is true that the disposal of radioactive wastes can also be perceived as being

an environmental risk rather than as an environmental harm. Indeed, this is true

of many of the pressing environmental concerns today. Yet, to say that

something is an environmental risk is not a denial of the existence of harm, but

an acknowledgement that the harm posed is speculative and uncertain at the

present time.30 Where high stakes are involved, the risky nature of the activity

does not negate the need for preventive or precautionary measures.

The knowledge and values relevant to the authorisation of radioactive waste

disposal are highly contentious,31 making the inclusion of discursive public

participation all the more necessary lest decisions are based on distorted or

manipulated knowledge or value judgement. Indeed, other writers have

commented on the lack of rationality or legitimacy in nuclear-related decision-

29 Environment Agency, An Environmental Vision: The Environment Agency’s Contribution to

Sustainable Development, (Bristol: Environment Agency, undated), p. 1830 Steele, J., supra, p. 425.31 Renn, O., Webler, T., and Wiedemann, P., “The Pursuit of Fair and Competent Citizen

Participation”, in Renn, O., Webler, T., and Wiedemann, P., (eds.), supra, p. 339, at 356-7.

25

making.32 The application for authorisation of radioactive waste disposal and

ensuing decisions are as a matter of Agency practice subjected to its enhanced

public participation programme. As such, these applications have been highly

publicised and well documented, and provide readily accessible documentary

data for studying Agency practice in this regard. While this documentation is the

main source of information for the case studies, I have also supplemented it by

attending a public meeting organised by the Agency in relation to the Sellafield

Decision33 to personally observe the proceedings at such meetings.

A discussion of Webler’s model for fair and competent public participation in

environmental decision-making follows. The model is built on Habermas’

conception of the ideal speech situation.34 While Habermas’ ideal speech

situation concerns the quality of the actual public discourse, Webler has adopted

and modified the conditions for the ideal speech situation for use as evaluative

yardsticks for the rules relating to public participation. For Webler, the rules for

participation must provide for a fair opportunity for affected and interests persons

to participate, set the agenda and procedural rules, and select the

facilitator/moderator for the participation forum. The rules for participation must

also facilitate competent participation. Inter alia, this requires that facts be drawn

from a wide diversity of sources and perspectives, and disputes over facts be

resolved through rational argument rather than to deference to the authority of

the scientific establishment. Similarly, generalised value judgements in the

common interest can competently only emerge out of rational broad-based

debate amongst participants rather than deference to the authority of the political

elite.

32 See for example, Wynne, B., Rationality and Ritual: The Windscale Inquiry and Nuclear

Decisions in Britain (Bucks: The British Society for the History of Science, 1982); Kemp, R.,

“Planning, Public Hearings, and the Politics of Discourse”, supra; and O’Riordan, T., Kemp, R.,

and Purdue, M., supra.33 Infra.34 Webler, T., “‘Right’ Discourse in Citizen Participation: an Evaluative Yardstick”, in Renn, O.,

Webler, T., and Wiedemann, P., (eds.), Fairness and Competence in Citizen Participation:

Evaluating Models for Environmental Discourse (Dordrecht: The Netherlands: Kluwer Academic

Publishers, 1995), p. 35.

26

In Chapter 7, I begin the first of my two key chapters concerned with the case

studies proper by assessing the fairness of the law and Environment Agency

practice relating to public participation in the authorisation of radioactive waste

disposal. I should warn that these two chapters do not make for easy reading,

not least because of the sheer volume of material covered, and seek the

reader’s indulgence and patience in this regard. I had considered grouping my

assessments of fairness and competence according to the relevant headings of

law, and Agency practice, but eventually decided against it even though such an

approach would be more systematic from a dogmatic point of view. I have

instead, grouped the relevant law and practice according to the fairness and

competence criteria; the chapters read better when the relevant law and facts

are arranged around the issues instead of arranging the issues around the law

and facts.

I critically consider in Chapter 7, the fairness of relevant provisions of the

Radioactive Substances Act 199335 and the Human Rights Act 1998,36 and the

United Nations Economic Commission Convention on Access to Information,

Public Participation in Decision-making and Access to Justice in Environmental

Matters 199837 as well as the fairness of the Environment Agency practice. I

conclude that decision-making in the authorisation of radioactive waste disposal

is dominated by the ideologies of orthodox public administration and private

interests, and the public participation ideology consequently plays a relatively

minor role.38 Statutory provision for public participation is limited to statutory

consultees deemed competent to advise the decision-maker on selected aspects

of the decision and those whose private rights or interests are directly affected;

the wider public are left out in the cold. While Agency practice is considerably

wider in terms of the scope of participants invited to participate, significant

deficits still exist in the law and practice in terms of facilitating fairer public

participation.

35 Hereinafter “1993 Act”.36 Hereinafter “1998 Act”.37 ECE/CEP/43. Hereinafter “Aarhus Convention”.38 McAuslan, P., Ideologies of Planning Law (Oxford: Pergamon Press, 1980).

27

I follow with a critical evaluation of the competence of the relevant law and

Environment Agency practice in Chapter 8. I conclude that competence in

environmental decision-making is low, exhibiting a high degree of deference to

the sheer authority of the scientific establishment, and value judgment of the

political elite. Although the courts play a supervisory role by ensuring that

evidentiary or value judgements are not manifestly unreasonable, they

essentially endorse the orthodox methods of fact-finding and value judgment by

the scientific and political establishments respectively; communicative reasoning

amongst participants is not valued as a competent means of resolving conflicts

in validity claims between participants.

I close in Chapter 9 with an overview of my findings, and conclude that prima

facie, the deficiencies in the fairness and competence of public participation in

the Environment Agency’s authorisation of radioactive waste disposal represents

a lost opportunity on the part of the Agency to strengthen its contribution to the

achievement of sustainable development. The Agency necessarily operates

within the institutional and legal framework in which it is established, and

therefore cannot entirely be responsible for this loss. I therefore end with some

thoughts on possible institutional and legal reforms in the law and Agency

practice that may improve fairness and competence in public participation in

environmental decision-making, and consequently make contribution to the

achievement of sustainable development more likely. Essentially, society needs

to be more reflexive and prepared to challenge the wisdom of existing methods

of environmental decision-making, particularly the conventional wisdom that

experts and the political leadership know better. One interim measure towards

this goal may be the setting up of an environmental court free of the emotional

baggage of a bygone era when environmental decisions were of lesser import

and did not have the potential to make or break the future of humanity.

28

Chapter 2: The Ethical Foundation of Environmental Decision-

making

In this chapter, I identify the nature of environmental concern. Three different

worldviews of the environment, namely anthropocentrism, biocentrism, and

ecocentrism, each with a different locus of value and a different set of associated

ethics, are considered. I then review selected international and national legal

instruments on nature conservation and conclude that the dominant worldview of

nature in public environmental decision-making remains anthropocentric, albeit

in its enlightened form. Environmental decision-making is still primarily

concerned with human survival and well-being rather than about the welfare of

non-human life or the planet’s ecosystems as such.

The Nature of Environmental Concern

How we perceive the environment matters because it affects how environmental

issues are presented and understood in environmental decision-making. An

anthropocentrist sees the environment simply as a store of natural resources

that to be drawn on to meet human needs. Under such a worldview, only

humans matter to humans; the environment is valued purely as a means to

serve human ends. Environmental harm is a matter for concern only because of

it affects the environment’s ability to meet our needs. Biocentrists and

ecocentrists criticise this view. They argue that nature must be respected and

protected regardless of its ability to serve human ends because nature has its

own intrinsic worth that is independent of its value to humans.

Anthropocentric Environmental Ethics

Early conceptions of nature were narrowly anthropocentric. Early philosophers

affirmed this instrumental view of nature. For Aristotle, for example, “plants exist

for the sake of animals … all other animals exist for the sake of man … nature

has made all things specifically for the sake of man”.1 Aquinas made a similar

1 Aristotle, Politics, 1.8.1256b13, The Politics of Aristotle, Simpson, P. L. P., (trans.), (Chapel Hill:

29

claim that “animals are ordered to man’s use in the natural course of things,

according to divine providence. Consequently, man uses them without any

injustice, either by killing them or employing them in any other way”.2

The anthropocentric value of nature can be broadly divided into three

categories.3 Firstly, nature is a source of raw materials, the ‘primary goods’ that

we consume directly. Examples of these raw materials include air and water,

and materials that we mine, extract, harvest or hunt. Secondly, nature performs

assimilation functions, absorbing the waste products from our activities. The air,

water, and land, for example, can act as waste sinks for certain wastes so that

the environment does not accumulate so much waste over time that the planet

becomes uninhabitable. Thirdly, nature also provides indirect services. The

maintenance of the gaseous composition of the atmosphere, and the regulation

of the earth’s temperature and the maintenance of weather patterns, for

example, ensure the maintenance of the stability and diversity of ecosystems.4

Nature also possesses amenity value – we enjoy aesthetic pleasure and

recreation from communion with a diversity of landscapes, flora and fauna, and

gain satisfaction of our intellectual curiosity. Our consumption of these indirect

services does not run down the stock of natural resources.

An anthropocentric worldview need not imply the inhumane treatment of animals

or disregard for animal welfare. Kant for example, argued that although we have

no direct moral duties to animals, kindness to animals was an indirect duty of

humanity. We practised kindness to animals; otherwise, we would also become

hard in our dealings with fellow humans.5 The more we learned about animal

behaviour, the more we loved them. Because animal nature was analogous to

human nature, we could not stifle our feelings in our treatment of animals. When

University of North Carolina Press, 1997), p. 22.2 Aquinas, T., Summa Contra Gentiles, English Dominican fathers, (trans.), (London: Burns,

Oates & Washburn, 1924), Bk. 3, Pt. 2.3 Reid, D., Sustainable Development: an Introductory Guide (London: Earthscan Publications,

1995), p. 90.4 For example, the maintenance of the gaseous composition of the atmosphere, the regulation of

the earth’s temperature and the maintenance of weather patterns.5 Kant, I., “Of Duties to Animals and Spirits” in Lectures on Ethics, Heath, P., and Schneewind, J.

B., (eds.), Heath, P., (trans.), (Cambridge: Cambridge University Press, 1997), p. 212.

30

other humans behaved cruelly to animals, it distressed us that they could be

capable of inflicting such cruelty and that the animal’s welfare was being

adversely affected. The dicta of Simon Brown LJ in R. v. Somerset County

Council, ex p. Fewings & ors. is also illuminating in this regard:

human well-being for many will depend upon their satisfaction as to animal welfare. That

explains much animal legislation and why such activities as bear-baiting and cock fighting

have long since been abolished. It explains why a spacious zoo provides enjoyment when

a cramped one may not, and why bull-fighting is unlikely to catch on here. The examples

can be multiplied.6

Anthropocentric environmental concerns need not be confined to the needs of

the present generation of humans. Possibly the first philosopher to postulate

duties to posterity, Kant wrote

Human nature is such that it cannot be indifferent even to the most remote epoch which

may eventually affect our species, so long as this epoch can be expected with

certainty”.7

From a rational viewpoint, neither temporal location, nor our ignorance, nor the

contingency of future people justifies our exclusion of future people from moral

consideration.8 The needs of people in the future merit as much moral

consideration as people in the present.

In an anthropocentric worldview, our main environmental concern centres

around the continued availability of natural resources to serve human ends,

including those of future generations of humans. Our concern about the

continued availability of natural resources for this and future generations is

6 [1995] 3 All ER 20, 30. Lord Justice Brown’s judgement was a dissenting one, but not in terms

of this anthropocentric conception of animal welfare.7 Kant, I., “Idea for a Universal History with a Cosmopolitan Purpose”, Proposition 8, in Political

Writings (2nd edition), Reiss, H., (ed.), Nisbet, H. B., (trans.), (Cambridge: Cambridge University

Press, 1991), p. 50.8 See, for example, Kavka, G., “The Futurity Problem” in Sikora R. I., and Barry, B., (eds.),

Obligations To Future Generations (Philadelphia: Temple University Press, 1978), p. 186. See

also, Golding, M., “Obligations to future generations” in Partridge, E., (ed.), Responsibilities to

Future Generations (New York: Prometheus Books, 1981), p. 61.

31

relatively recent, and may be traced to Malthus. For several centuries, the

dominant view, at least in the West, was to take for granted the abundance of

natural resources. Based on questionable empirical data and dubious theory,

Malthus was the first person to attempt to make a scientific contribution to the

debate about the possibility of conflict between population growth and

subsistence, and the first one to take a global perspective.

According to Malthus, while the human population increased geometrically, food

production increased arithmetically until the occupation of all fertile land, and

then increases at a diminishing rate. Eventually, the world population would

outstrip the availability of food.9 Malthus’ opponents countered that advances in

technology would effectively resolve the problem, and they were apparently right;

advances in science and technology did improve the productivity of land, and

Malthus’ predictions that population growth would outstrip food production did

not materialise. The reason for this however, had just as much to do with the

exploitation of the newly discovered continents and the development of the

means to transport produce around the world. These developments meant that

the inevitable was artificially prolonged as natural reserves from less or

uninhabited areas were drawn to sustain a growing population elsewhere.

Furthermore, with the discovery of less crowded continents, Britain and many

other European nations were able to ‘export’ their surplus population to far-flung

lands, thereby easing the pressures of a growing population.

In more recent times, Carson’s Silent Spring revived public concerns about

ecological limits in the twentieth century. Unlike Malthus who was concerned

about the sustainability of a geometrically growing world population, Carson

sounded the environmental alarm in a different quarter - the capacity of the

environment to assimilate the pollution arising from the indiscriminate and liberal

9 Malthus, T., An Essay on the Principle of Population; or a View of its Past and Present Effects

on Human Happiness; With an Inquiry into Our Prospects Respecting the Future Removal or

Mitigation of the Evils which it Occasions, selected and introduced by Donald Winch, D., using

the text of the 1803 edition as prepared by Patricia James for the Royal Economic Society, 1990,

showing the additions and corrections made in the 1806, 1807, 1817, and 1826 editions

(Cambridge: Cambridge University Press, 1992), Bk. 1, Ch. 1.

32

use of insecticide: the pollution destroyed the environment by saturating the air,

water, and earth with toxic chemicals and was poisoning all life on it.10

Commoner reinforced Carson’s concerns about modern technology. While

acknowledging that population and affluence were also contributory factors to

environmental problems, Commoner argued that these accounted only for a

small percentage of the increase in the depletion of natural resources. The

major culprit was in fact “the sweeping transformation of productive technology”

since the Second World War; “productive technologies with intense impacts on

the environment had displaced less destructive ones”.11 Carson had only been

concerned about the use of insecticide; Commoner showed that generally, other

technological advancements were also destroying the environment.

Ehrlich, on the other hand, identified a growing world population as the root

cause of famine and ecocatastrophe.12 According to him, all countries, rich and

poor, were overpopulated in the sense that they were not able to produce

enough food to feed their populations. Increasing food production could mitigate

the problem, but the technology adopted by humans in bringing this about and

the subsequent distribution of the food created more problems than it solved.

The only way to defuse the “population bomb” was to lower the birth rate, failing

which it would lead to a population explosion and an increase in the death rate.

Ehrlich subsequently acknowledged that environmental impact (I) was the

product of population (P), affluence (consumption) (A), and technology (T); and

coined the famous I=PAT equation, but insisted that the critical factor was

population:13 even though “burgeoning consumption among the rich and

increasing dependence on ecologically unsound technologies to supply that

consumption also play major parts” in the environmental crisis,14 any reduction in

consumption by the US was futile, as small per capita increases in consumption

10 Carson, R., Silent Spring (1962: Boston: Houghton Mifflin Company, 1987), p. 7.11 Commoner, B., The Closing Circle: Confronting the Environmental Crisis (London: Jonathan

Cape, 1972), p. 177.12 Ehrlich, P. R., The Population Bomb (1968: New York: Ballantine Book, 1971). See also

Ehrlich, P. R., and Ehrlich, A., The Population Explosion (1990: London: Arrow Books, 1991).13 Ehrlich, P. R., and Ehrlich, A., ibid., p. 113.14 Ibid., p. 18.

33

in populous countries, such as China and India, would easily offset such

reductions.15

Hardin was also of the view that the pollution problem was a consequence of

population, and was concerned about unrestrained population growth.16 While

exploitation or pollution by a small population did no serious harm, it became

unbearable only when the population became denser. He related the ‘parable’ of

the tragedy of the commons in which the pursuit of maximum individual benefit

by rational herdsmen would lead them to increase the number of cattle in their

herd grazing on the commons beyond the carrying capacity of the land,

eventually bringing ruin to all.17 Analogously, people in the developing countries

had every incentive to breed freely because they treated natural resources as a

commons, freely accessible to all. The solution, according to him, was to

legislate temperance in the freedom to breed through “mutual coercion mutually

agreed upon”.18

From the second half of the 1960s, the literature on the ‘environmental crisis’

began to develop a more structural view of the causes of natural resource

depletion and environmental degradation. One such view identified the crisis as

the consequence of a number of interrelated factors; reducing the environmental

impact was no longer seen as simply being a matter of slowing population

growth, reducing consumption, or greater scrutiny of technology alone - at the

root of the problem was society’s orientation towards insatiable growth. Boulding

observed that the prevailing conception of the economy was that of a “cowboy

economy”, an open system of production and consumption that exploited

abundant resources, used vast amounts of energy and accelerated production

with little thought of tomorrow. This was a mistaken perception because in

reality, the economy was operating in a “spaceman economy”, a closed system

with finite limits; the biosphere did not have unlimited natural resources, whether

for extraction or for use as sinks. Humans therefore had to find ways to maintain

15 Ibid., pp. 113-4.16 Hardin, G., supra, p. 1245.17 Ibid., p. 1244.18 Ibid., p. 1247.

34

“stocks” instead of maximising the throughput of resources for production and

consumption.19

Putting the point across on a more scientific footing, Georgescu-Roegen argued

that the basic nature of the economic process was entropic and subject to the

law of thermodynamics.20 The process neither created nor consumed matter or

energy, but transferred low entropy into high entropy, e.g., by burning wood and

converting it to ash.21 The higher the entropy of a system, the more disordered

or random it became, and the less available its energy would be for use. While

the economic process sought to increase entropy, maximising the quantity of life

supportable required husbandry of a different nature - minimising the rate of net

increase of entropy. Any depletion of natural resources for the satisfaction of

non-vital needs that exceeded the rate of conversion of wastes into resources

reduced the number of lives that the future could support.22

Adopting a similar tone, the editors of The Ecologist argued in A Blueprint to

Survival23 that the principal defect of the industrial way of life with its ethos of

expansion, in particular in human numbers and per capita consumption, was that

it was not sustainable24 - finite resources simply could not sustain indefinite

growth in any form.25 Continuing adherence to deeply rooted beliefs in

continuous growth by the “homo sapiens industrialis”26 could only be at the cost

of “disrupting ecosystems and exhausting resources, which must lead to the

failure of food supplies and the collapse of society”.27 Aside from the technical

solutions such as minimising the disruption of ecological processes and

19 Boulding, K., “The Economics of the Coming Spaceship Earth” in Jarrett, H., (ed.),

Environmental Quality in a Growing Economy (Baltimore, Maryland: Johns Hopkins Press, 1966),

p. 3, at 9.20 Georgescu-Roegen, N., The Entropy Law and the Economic Process (Cambridge,

Massachusetts: Harvard University Press, 1971), p. 283.21 Ibid., p. 281.22 Ibid., p. 21.23 Ecologist, The, A Blueprint for Survival (Harmondsworth: Penguin, 1972).24 Ibid., p. 15.25 Ibid., p. 17.26 Ibid., p. 21.27 Ibid., p. 19.

35

population stabilisation, social changes were also urgently needed – one that led

to a society that was stable but not stagnant.28

Shortly thereafter, a research team from the Massachusetts Institute of

Technology published Limits to Growth.29 It reported the findings from its use of

a computer-based systems model, World 3, to study the implications of

continuing exponential growth in five interconnected trends of global concern –

industrialisation, population growth, widespread malnutrition, depletion of non-

renewable natural resources, and ecological damage from 1900 to 2100. The

report concluded, inter alia, that if the present growth trends continued

unchanged, “the limits to growth on this planet will be reached sometime within

the next one hundred years. The most probable result will be a rather sudden

and uncontrollable decline in both population and industrial capacity”.30 In order

to avoid the catastrophic consequences, these growth trends had to be arrested

as soon as possible, so that a sustainable ecological and economic stability

could be maintained. Limits to Growth attracted much attention for its seeming

objectivity.31 It received much criticism for its message of the inevitability of

collapse. Critics argued that the researchers had disregarded in their model,

non-physical factors such as man’s ingenuity in solving problems.32

In the past decade, Our Common Future, the report of the WCED on sustainable

development, has probably remained the most influential anthropocentric

expression of concern for state of the environment.33 The Commission noted the

environmental trends that threatened to radically alter the planet, and the threat

this posed to all life on Earth, including humans. The WCED acknowledged that

28 Ibid., p. 29.29 Meadows, D. H., et al, The Limits to Growth (London: Earth Island, 1972).30 Ibid., p. 23.31 For a critique of the ideological background of, and models used in The Limits to Growth, see

Cole, H. S., D., et al, (eds.), Thinking About the Future: a Critique of The Limits to Growth

(London: Chatto & Windus for Sussex University Press, 1972).32 See for example, Simon, J., The Ultimate Resource (Princeton: Princeton University Press,

1981).33 Our Common Future is also one of the key documents that led to the entrenchment of the

concept of sustainable development in international and national environmental law and policy. I

discuss the report in greater detail in Chapter 3.

36

the accumulation of knowledge and the development of technology could stretch

ecological limits, but pointed out that there were ultimate limits to the carrying

capacity of the resource base.34 Its concern was that many present efforts to

meet present needs and aspirations were simply unsustainable because we

were drawing too heavily and too quickly on already overdrawn environmental

resources.35

The anthropocentric concern about the state of the environment continues to

dominate. Several established environmental trends, in particular, population

growth, rising temperature, falling water tables, shrinking cropland per person,

collapsing fisheries, shrinking forests, and the loss of plant and animal species

are a cause for concern because they seem to be threatening the future of

civilisation.36 Global technology appears to enable problems of limitation to be

overcome, but has only succeeded in transferring local environmental limits to

the global level.37

Even if the warnings by ‘doomsayers’ of impending ecological disaster are

overcautious, their core message cannot be undisputed - the Earth has finite

natural resources and therefore cannot be used to meet every human ‘need’.

What continues to be disputed is whether the present trend of resource use can

continue. Resource optimists such as Bailey, continuing in the tradition of the

late Simon,38 continue to argue that human ingenuity is the key to sustainable

use of natural resources:

34 Ibid., p. 45.35 Ibid., p. 836 Brown, L. R., “Challenges of the New Century”, in Starke, L., (ed.), State of the World 2000: a

Worldwatch Institute Report on Progress toward a Sustainable Society (London: Earthscan,

2000), p. 3, at 5. See also World Wide Fund for Nature, supra; and United Nations Environment

Programme, supra.37 Brown, L. R., and Flavin, C., “A New Economy for a New Century”, in Starke, L., (ed.), State of

the World 1999: a Worldwatch Institute Report on Progress Toward a Sustainable Society

(London: Earthscan Publications, 1999), p. 3, at 4.38 See Simon, J., supra. Simon is generally regarded as one of the first to reject the argument

that supplies of natural resources are finite. Simon’s flawed central argument is that natural

resources are not resources until human intellect makes them so, and since human intellect is an

infinitely renewable resource, the supply of natural resources is accordingly infinite.

37

We make ourselves better off not by increasing the amount of stuff on planet earth – that

is, of course, fixed – but by rearranging the stuff we have available so that it provides us

with more of what we want – food, clothing, shelter, and entertainment. As we become

cleverer about rearranging material, the more goods and services we can get from

relatively less stuff. This process of improvement has been going on ever since the first

members of our species walked the earth ... If our technologies had remained stuck in the

past and if somehow the world’s population had nevertheless been able to grow to its

current level, the impact of humanity on the natural environment would have been

calamitous … humanity has avoided the Malthusian trap while, at the same time, making

the world safer, more comfortable, and more pleasant for both larger numbers of the

people as well as a larger proportion of the world’s people.39

Bailey is of course correct to point out that human technology is potentially

unlimited. For that matter, renewable natural resources are potentially unlimited

as well. Even if the theoretical conceivability of infinite growth in resource

consumption were conceded, it does not follow that such growth is even

probable or even possible in practice.40 There is moreover, a limit to the rate at

which human ideas or renewable natural resources can be generated, even in

the most favourable of conditions. The problem lies in our inability to generate

ideas fast enough to keep up with the rate at which we consume natural

resources.

As the WCED noted, “new technologies are not all intrinsically benign, nor will

they have only positive impacts on the environment”.41 Carson and Commoner

showed that new technology may bring with it its own set of problems and

hazards. Pesticides may protect crops from insects in the short term, but the

poison creates new problems for us when it enters our food chain. Furthermore,

the insects gradually develop a resistance to the pesticides, so increasing

quantities and dosage have to be applied, and new varieties of pesticide have to

be introduced to keep the insects at bay.

39 Bailey, R., “The Progress Explosion: Permanently Escaping the Malthusian Trap”, in Bailey, R.,

(ed.), Revisiting the True State of the Planet: Earth Report 2000 (New York: McGraw-Hill, 2000),

p. 1, at 13.40 Lecomber, R., Economic Growth versus the Environment (London: Macmillan, 1975), p. 42.41 World Commission on Environment and Development, supra, p. 219.

38

Furthermore, much of our technology has really succeeded in displacing and

redistributing the adverse effects of the environmental crises rather than

resolving them. Often, the problem is not so much an absolute unavailability of

resources for meeting needs as inaccessibility by some people to such

resources. This gives rise to the question of how access to these finite

resources can be better shared. Advances in technology may improve the

productivity of natural resources, but may not necessarily alleviate the problem

of inaccessibility. In fact, the distributional problem can be aggravated to the

extent that wealth, and consequently access to natural resources, is increasingly

concentrated into a privileged minority - those with the political and economic

means to control the direction of scientific and technological developments.

Human ingenuity or not, we have at present is a finite stock of natural resources

to meet our needs. Many natural resources, e.g., fossil fuels, are non-renewable

- or at least we have not found a way to regenerate them in a short time. Even

renewable resources, e.g., fish stock, can only regenerate at a slow, steady rate,

at nature’s own pace, occasionally enhanced by human ingenuity. As the world

population grows and per capita consumption of natural resources increases,

albeit at a more efficient rate, our rate of running down natural resources to an

unusable state increasingly exceeds the earth’s capacity to restore them. The

decline in levels of some of these natural resources that are essential for basic

survival, such as clean air, potable water, and food, is evidence that our

technology is not restoring our natural resources faster than we are depleting

them.

Finally, even if technological advancements have enabled us to “rearrange stuff”

so that we have so far been able to overcome problems of survival, it is

irresponsible assume to that we can continue to do so, and to leave future

generations to bear the risk that we may eventually not be able to cope with our

increasing rate of depletion of natural resources. Prudence dictates that we err

on the side of caution and take precautionary measures today.42 If we adopt

precautionary measures now and it turns out that we were overcautious, the

consequences may be that the present and future generations would have

42 Pearce, D., Markandya, A., and Barbier, E., Blueprint for a Green Economy (London:

Earthscan Publications, 1989), pp. 10-1.

39

foregone the opportunity to live a higher quality of life than if such precautions

had not been taken. On the other hand, if our confidence in technological

solutions to future problems turns out to be misplaced, our premature irreversible

depletion of natural resources on the basis of anticipated technological

improvements would be disastrous for future generations who would have to pay

dearly for our misjudgement.

Valuing Nature for its Own Sake

An anthropocentrist’s primary environmental concern would be about the

continued availability of natural resources for human use. As pointed out earlier,

an anthropocentric ethic does not necessarily exclude “moral considerability”43 of

non-human life. There is an alternative view however, that we owe direct moral

duties to nature to treat it with respect because nature has intrinsic worth that

merits our respect regardless of any benefit or otherwise that we derive from it.

The idea of humans owing moral obligations to non-humans departs from

traditional theories of moral philosophy. These theories generally take a

reciprocal view of morality. Humans are potentially capable of freedom and

reason, and of thinking self-critically about their own life and to take personal

responsibility for them. They respect the same quality in other humans, and

therefore reason and act morally by treating other humans in terms of principles

that are reasonably acceptable to these people.44 The non-anthropocentric

worldview on the other hand, rejects an anthropocentric approach to

environmental decision-making. Tribe, for example, has pointed out that

What the environmentalist may not perceive is that, by couching his claim in terms of

human self-interest – by articulating environmental goals wholly in terms of human needs

and preferences – he may be helping to legitimate a system of discourse which so

structures human thought and feeling as to erode, over the long run, the very sense of

obligation which provided the initial impetus for his own protective efforts.45

43 Goodpaster, K. in “On Being Morally Considerable” (1978) Journal of Philosophy 75: 308.44 See, for example Kant, I., Foundations of the Metaphysics of Morals, Beck, L. W., (trans.),

(New York: Liberal Arts Press, 1959).45 Tribe, L. H., supra, p. 1331.

40

Within the non-anthropocentric worldview, there are two broad positions: those

who locate value in individual non-human life, and those who locate value in the

biotic community as a whole.

Biocentrism

Biocentrists46 have an individualistic outlook of nature. Taylor, for example,

argued that all organisms had a good of their own; we could objectively say, from

the organism’s viewpoint whether a certain state of affairs was good or bad for

the organism without reference to any other entity.47 This was so even for the

simplest of organisms:

Even when we consider such simple animal organisms as one-celled protozoa, it makes

perfectly good sense to a biologically informed person to speak of what benefits or harms

them, what environmental changes are to their advantage or disadvantage, and what

physical circumstances are favourable or unfavourable to them.48

Taylor accepted that the fact that an individual organism had an objective good

was a necessary but insufficient condition for a biocentric ethic; the other

prerequisite is a biocentric worldview. The core beliefs of this worldview were

firstly, that we were members of the Earth’s community of life in the same sense

and on the same terms in which other living things were members of that

community; secondly, the human species, like all other species, was an integral

46 By “biocentrists”, I exclude philosophers who do not go ‘all the way’. Singer, for example,

argues for a moral duty towards only sentient animals. See Singer, P., Animal Liberation (2nd

edition) (New York: New York of Review Books, 1990). Regan, on the other hand, argued for

moral consideration for higher forms of animals that have beliefs and desires, an emotional life,

and a psychophysical identity over time. See Regan, T., The Case for Animal Rights (Berkeley:

University of California Press, 1983). I agree, however, with Taylor that there is no basis for

according preferential treatment for certain species of organism based on the degree to which

they share selected human characteristics. See Taylor, P., supra, pp. 129-33. Alder and

Wilkinson described approaches that relied on selected human characteristics as benchmarks of

value as “anthropomorphic”, and considered them flawed because they accord respect to living

things as “honorary human beings”. See Alder, J., and Wilkinson, D., Environmental Law and

Ethics (Basingstoke: McMillan, 1999), pp. 50 and 348.47 Taylor, P., ibid., pp. 60-71.48 Ibid., pp. 66-7.

41

element in a system of interdependence; thirdly, each organism was a unique

individual pursuing its own good in its own way; and lastly, we were not

inherently superior to other living things. Thus, when human interests conflicted

with the interests of another organism, human interests did not automatically

prevail; respect for nature entailed balancing the good of humans with the

conflicting good of animals and plants.

The biocentric ethic is not without its difficulties. Notwithstanding Taylor’s

advocacy for the intrinsic worth of individual organisms, he concedes that our

non-basic interests may, in certain circumstances, justifiably prevail over non-

human basic interests if we determine that “the human values being furthered

are really worth the extreme costs being imposed on wild creatures”,49 and that a

modification in values or a shift in perspective cannot be made.50 Yet, if we are

not inherently superior to other living things, there could not hardly ever be any

justification for us to decide that certain benefits to us merit the imposition of

extreme costs on other living things. Taylor also argued that as a last resort,

when we unavoidably harm animals and plants, we had to must make reparation

or compensation by focussing “on the soundness and health of whole

ecosystems and their biotic communities” as this is the “most effective means for

furthering the good of the greatest number of organisms”.51 Again, this seems

inconsistent with the idea of respecting a non-human in its own right. If

individual organisms have intrinsic worth, I cannot see how making other

organisms better off can ever constitute reparation or compensation for harm

caused to an individual organism, even as a last resort.

Ecocentrism

Ecocentrists52 view nature more holistically than biocentrists. They place

paramount importance in ecosystems as communities of interrelated organisms,

49 Ibid., p. 290.50 Ibid., p. 291.51 Ibid., p. 305.52 See Leopold, A. C, “The Land Ethic” in A Sand County Almanac (New York: Ballantine, 1970);

and Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement: a Summary”,

supra.

42

rather than in the individual organisms themselves. Leopold is the single most

influential figure in the development of an ecocentric environmental philosophy;

he was the first person to call for a radical rethinking of ethics in light of the then

newly developed science of ecology. His essay, The Land Ethic,53 was the first

systematic presentation of an ecocentric worldview.54 In the essay, Leopold

described the land as a biotic mechanism:

Plants absorb energy from the sun. This energy flows through a circuit called the biota,

which may be represented by a pyramid consisting of layers. The bottom layer is the soil.

A plant layer rests on the soil, an insect layer on the plants, a bird and rodent layer on the

insects, and so on up through various animal groups to the apex layer, which consists of

the larger carnivores.

The species of a layer are alike … in what they eat. Each successive layer depends on

those below it for food and often for other services, and each in turn furnishes food and

services to those above ... Man shares an intermediate layer with the bears, racoons, and

squirrels which eat both meat and vegetables.

The lines of dependency for food and other services are called food chains … Each

species … is a link in many chains … The pyramid is a tangle of chains so complex as to

seem disorderly, yet the stability of the system proves it to be a highly organised structure

…

In the beginning, the pyramid of life was low and squat; the food chains short and simple.

Evolution has added layer after layer, link after link. … The trend of evolution is to

elaborate and diversify the biota.55

Leopold argued for an extension of ethics to deal with man’s relations with the

land. This involved enlarging the boundary of the human community to include

the land, so that humans saw themselves as only ordinary members and citizens

of the land-community rather than as its conquerors.56 He eschewed a system

of conservation based solely on economic self-interest that led to the elimination

of many elements in the land-community that are in fact essential to its healthy

functioning. Leopold did not see any conflict between the broader human

53 Leopold, A. C., supra.54 Ibid., p. 263.55 Ibid., p. 251.56 Ibid,. p. 240.

43

interest and the interest of the land-community; it was very much in the interests

of humans to keep healthy, the land of which humans were a part. There was

nothing wrong with using parts of nature for human benefit so long as the health

of the community as a whole was respected. It was important that humans

stopped thinking of land use solely in economic terms; they also had to address

ethical and aesthetic questions. He summed up his ethic thus: “A thing is right

when it tends to preserve the integrity, stability, and beauty of the biotic

community. It is wrong when it tends otherwise”.57

Leopold’s land ethic marked the start of an ecocentric ethic, but it is not as

“thoroughly non-anthropocentric” as some people might think.58 What Leopold

appeared to be suggesting was that it is in our interest to conceive of nature

holistically and to see ourselves as a part of this nature. His call to question

what is “ethically and esthetically right, as well as what is economically

expedient”; and to preserve the “integrity, beauty and stability” of the biotic

community may be understood as an appeal to us to appreciate the inherent

value of the ecosystem to their own well-being rather than to treat the biotic

community as the locus of value. While he supported the hunting of animals to

keep their population under control, he did not seem to countenance the

application of forcible culling to keep the human population in check. In that

sense the land ethic is a form of enlightened anthropocentrism59 – in the long

term, what is good for the biotic community is also good for us. Callicott spoke

of the ambivalence of Leopold’s land ethic thus,

From the inside, from the lived point of view of the community member with evolved moral

sensibilities, it is deontological. It involves an affective-cognitive posture of genuine love,

respect, admiration, obligation, self-sacrifice, conscience, duty, and the ascription of

intrinsic value and biotic rights. From the outside, from the objective and analytical

57 Ibid., p. 262.58 See for example, Des Jardins, J., R., Environmental Ethics: an Introduction to Environmental

Philosophy (2nd edition) (London: Macmillan Press, 1997), p. 178.59 Further evidence of his enlightened anthropocentric approach to a holistic view of the

environment can be found throughout A Sand County Almanac where he described the

contribution of nature to human culture and well-being. See also Leopold’s early explicitly

anthropocentric views subsequently published in Leopold, A. C., “Some Fundamentals of

Conservation in the Southwest” (1979) Environmental Ethics 1: 131.

44

scientific point of view, it is prudential.60

Deep Ecology

The term “thoroughly non-anthropocentric” is more apt for a more radical form of

non-anthropocentric environmental ethic such as deep ecology. In some ways,

Lovelock’s hypothesis can be seen as the precursor of deep ecology - the

scientist hypothesised that the Earth is an intelligent system in which all

organisms play a part in maintaining. These organisms in turn derived life

support from the system.61 Like Leopold, deep ecologists take a holistic view of

nature. According to deep ecologists, organisms, including humans, are “knots

in the biospherical net or field of intrinsic relations”.62 Deep ecologists reject

however, the anthropocentric view of “shallow” ecologists who believe that

“humans are above or outside of nature, as the source of all value, and

ascribe[s] only instrumental, or use value to nature”.63 According to deep

ecologists, shallow ecologists are primarily concerned with the “health and

affluence of people in the developed countries”.64 Instead, to deep ecologists,

the universe consists of one basic spiritual or material entity, and humans, along

with different organisms or parts of nature are merely intimate parts of this of this

single entity.

The non-anthropocentric nature of the deep ecology worldview is evident from its

basic principles.65 Deep ecologists believe that the well-being and flourishing of

60 Callicott, J. B., “The Conceptual Foundations of the Land Ethic” in Companion to a Sand

County Almanac: Interpretive and Critical Essays (Madison, Wisconsin: University of Wisconsin

Press, 1987), p. 214. See also Heffernan, J. D., “The Land Ethic: a Critical Appraisal” (1982)

Environmental Ethics 4: 235, where Heffernan suggests that the land ethic was intended as a

subsidiary supplement rather than a substitute for an anthropocentric standard of right and

wrong.61 See Lovelock, J. E., GAIA: a New Look at Life on Earth (Oxford: Oxford University Press,

1979).62 Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement. A Summary”, supra.63 Capra, F., “Deep Ecology: a New Paradigm” in Sessions, G., (ed.), Deep Ecology for the 21st

Century: Readings on the Philosophy and Practice of the New Environmentalism (Boston:

Shambhala Publications, 1995), p. 19, at 20.64 Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement. A Summary”, supra.65 The principles were developed as a statement of common principles to unify the diversity of

45

non-human life on Earth as a whole have value in themselves;66 and this

requires a smaller human population. So it would be better for humans and even

better for non-humans if the human population were to be reduced.67 Ultimately,

what matters is that the ecosystems should flourish - the value of individual life,

human or otherwise, depends on its contribution to the flourishing of these

ecosystems. If we upset the ecological balance through our destructive

behaviour or through our sheer numbers, then it is better for the ecosystem that

there are fewer of us. Intrinsic worth also resides in the richness and diversity of

life forms, and humans have no right to reduce this richness and diversity except

to satisfy their vital needs. In the event of conflict between our interests and

non-human interests, deep ecologists have a straightforward answer: “The earth

does not belong to humans … humans only inhabit the earth, using resources to

satisfy vital needs”.68 Thus, our non-vital needs would necessarily have to defer

to the good of the ecosystem.69

The difference between Leopold’s anthropocentric land ethic and deep ecology’s

non-anthropocentric ethic shows most clearly in the way each approaches the

concept of biological diversity. While both the land ethic and deep ecologists

emphasise the importance and value of biodiversity, each takes a very different

view of what biodiversity entails. For Leopold, biodiversity calls for an active

management of the structure of the biotic pyramid to mould ecosystems in

accordance with a human-conceived ideal state of the ecosystem. In cases

aims and formulations of various deep ecologists, and were first published in Sessions, G., (ed.),

Ecophilosophy VI newsletter (May, 1984). They have subsequently appeared in a number of

publications, including Naess, A., “The Deep Ecological Movement: Some Philosophical Aspects”

in Sessions, G., (ed.), Deep Ecology for the 21st Century: Readings on the Philosophy and

Practice of the New Environmentalism, supra, p. 64, at 68.66 For an exposition of the objective value of nature, see Rolston, H., III, Environmental Ethics:

Duties to and Values in the Natural World (Philadelphia: Temple University Press, 1988).67 Naess, A., “The Deep Ecology ‘Eight Points’ Revisited” in Sessions, G., (ed.), Deep Ecology

for the 21st Century: Readings on the Philosophy and Practice of the New Environmentalism,

supra, p. 213, at 218.68 According to Naess, what are vital needs is “deliberately left vague to allow for considerable

latitude in judgement”. See Naess, A., “The Deep Ecological Movement: Some Philosophical

Aspects”, supra, p. 69.69 Ibid., p. 74. Contra Taylor’s biocentrism, which allows in some circumstances for non-basic

human interests to override basic non-human interests.

46

where we consider a species to be over-reproducing and therefore threatening

the integrity and stability of structure, we could have an obligation to cull the

species.70 Deep ecologists on the other hand, argue that humans should not

interfere with the course of nature to conform to a human-generated conception

of an ideal state; there is no inherently correct structure for nature. We cannot

improve biological diversity because one natural state of diversity is as good as

any other. The best thing we can do for nature is to leave it alone to flourish on

its own and to minimise our impact on it.71

Social ecologist, Bookchin, has highlighted a number of internal contradictions in

the deep ecology worldview. Essentially, he argued that although deep

ecologists agreed that the emergence of human beings and human society

guided by sophisticated thought rather than instinct are products of natural

evolution, yet, they treated human activities separately from the activities of other

species; humans were expected to tread lightly on this planet as though they

were only visitors instead of rightful inhabitants along with the other co-

inhabitants. Although deep ecologists did not consider that there was any ideal

state of nature, they argued against any human intervention in the state of nature

as though there were something inherently unnatural in human intervention.

Furthermore, while deep ecologists did not support the culling of species

because they did not accept that there was any ideal state of nature, they argued

that the planet would be better off with a smaller human population. It was

understandable for proponents of anthropocentrism to apply double standards

for humans and nature; in their worldview, humans were separate from nature.

In the case of deep ecology however, the application of double standards was

inexplicable; their treatment of humans separately from the rest of nature

seemed inconsistent with their worldview that humans and the rest of nature

were one.72

70 Presumably, Leopold does not intend to go so far as to support the culling of humans to

maintain the “integrity, stability and beauty of the biotic community” from a human perspective,

thus suggesting that ultimately his land ethic is anthropocentric.71 Devall, B., and Sessions, G., supra, p. 68.72 Bookchin, M., “Social Ecology versus Deep Ecology” (1988) Socialist Review 18(2): 11.

47

Non-anthropocentric Approaches to Environmental Decision-

making

Notwithstanding the conceptual difficulties of a non-anthropocentric

environmental ethic, it might be argued that a non-anthropocentric approach to

environmental protection may further anthropocentric environmental objectives.

Stone, for example, argued for natural objects to have legal rights.73 A society in

which rivers had legal rights would evolve a different system from one that did

not employ such an expression. Judges would be inclined to interpret rules such

as those of burden of proof more liberally. Thus, a non-anthropocentric

approach could “contribute to a change in popular consciousness”74 and give

conservationists the means to argue in “less egotistic and more emphatic”

terms.75

Stone76 and Tribe77 likened giving natural objects legal rights to giving

corporations legal rights.78 Corporations are legal constructs. They ‘exist’ only

in the realm of imagination. When the law protects corporations by giving them

rights, it is not because corporations have some intrinsic worth that humans

respect. It is simply an effective way of protecting a human benefit, in this case,

a commercial venture. In the same way, “affording legal rights to endangered

species and threatened wilderness areas might thus be regarded as a

convenient technique for concentrating congeries of otherwise diffuse aesthetic

and ecological concerns ultimately reducible to human interest – in other words,

as a useful but quite transparent legal fiction”.79

As a technique for furthering anthropocentric environmental concern, a non-

anthropocentric approach to environmental decision-making is unnecessary and

73 See Stone, C. D., supra.74 Ibid., p. 53.75 Ibid., p. 43.76 Ibid., pp. 40-2.77 Tribe, L. H., supra. See also Wilkinson, D., “Using Environmental Ethics to Create Ecological

Law”, supra, pp. 41-2.78 Stone, C. D., supra, p. 5; and Tribe, L. H., ibid., pp. 1342-3.79 Tribe, L. H., ibid., p. 1343.

48

may even be counter-productive. As Passmore rightly pointed out, the objective

of environmental protection would be well served if we learned to appreciate

nature for what it is rather than what it can do. He argued that we have to “learn

to be more sensuous towards the world, ready to enjoy the present moment for

itself, as an object of immediate pleasure, instead of frenetically seeking the

power and security that possessions offer … Only if men can first learn to look

sensuously at the world will they learn to care for it”.80

Norton also considered a non-anthropocentric approach redundant; an

anthropocentric concern for future generations of human beings would also

require the maintenance of biodiversity and the health of the ecosystem:

Introducing the idea that other species have intrinsic value, that humans should be “fair” to

all other species, provides no operationally recognisable constraints on human behaviour

that are not already implicit in the generalised, cross-temporal obligations to protect a

healthy, complex, and autonomously functioning system for the benefit of future

generations of human beings.81

A non-anthropocentric approach to environmental decision-making would further

have to overcome an ideological barrier. In the context of legal environmental

law for example, Tribe himself accepted that “the widely held view that law exists

for the purpose of ordering human societies, and for that purpose alone, may

well prove unassailable”.82 Similarly, Stone agreed that society would consider

the conferral of rights to natural objects “unthinkable”, at least initially. He

considered however, that “we are already on the verge of assigning some such

rights, although we have not faced up to what we are doing in those particular

terms”.83

A non-anthropocentric approach to environmental decision-making may be

counterproductive because, as Dobson pointed out, an anthropocentric

80 Passmore, J., Man’s Responsibility for Nature (London: Gerald Duckworth & Co., 1974), pp.

188-9.81 Norton, B. G., Towards Unity among Environmentalists (Oxford: Oxford University Press,

1991).82 Tribe, L. H., supra, p. 1329.83 Stone, C. D., supra, pp. 8-10.

49

approach to environmental approach to environmental protection was more likely

to have mass appeal. Biocentrists and deep ecologists view humans as only

one of the many life forms on Earth. As such, humans are not entitled to any

special entitlement to pursue their activities or survival at the expense of other

life forms. The potential anti-human image projected by non-anthropocentrism

militates against its having mass appeal. On the other hand, even non-

environmentalists might be prepared to subscribe to anthropocentric

environmental ends through their committed concern for the welfare of the

present and future generations of humans.84

Ultimately, it is difficult to see how a non-anthropocentric ethic or approach could

be adopted or be helpful in environmental decision-making. As we have seen,

non-anthropocentrists do not prescribe absolute protection for the good of non-

human life.85 When human and non-human interest conflict, it is not clear how

the conflicting interests are to be resolved without resort to what humans hold

dear.

Anthropocentric Environmental Law and Decision-making

Some academics have argued that international law recognises a non-

anthropocentric ethic in environmental protection. In this section, I examine the

nature of the underlying environmental ethic of international and English

environmental law86 and conclude that both remain anthropocentric. I will be

surveying nature conservation laws in England because these seemingly protect

non-human interests – the care and survival of plants, wildlife and areas of

special ecological merit.

84 Dobson, A., Justice and the Environment: Conceptions of Environmental Sustainability and

Dimensions of Social Justice (Oxford: Oxford University Press, 1998), p. 257.85 Taylor, P., supra, pp. 290-1; and Naess, A., “The Deep Ecological Movement: Some

Philosophical Aspects”, supra, p. 74.86 I leave out the question of whether the common law is anthropocentric. I share the views of

Alder and Wilkinson that the common law is anthropocentric. See Alder, J., and Wilkinson, D.,

supra, pp. 222-4.

50

It is not always easy to distinguish between laws that protect the human value of

nature and laws that protect the intrinsic worth of nature. Wilkinson suggested

some distinctions.87 Non-anthropocentric legislation would provide for the

respect of nature as a priority and would permit its exploitation only in

exceptional circumstances, such as to meet vital human needs. Such legislation

would not seek to protect not only the endangered species but would also

contain measures to prevent endangering common species and habitats in the

first place. Finally, the “special value on wild nature” would be respected and

large and abundant areas would be set aside where the management of nature

is de-emphasised and nature is allowed to take its course.

Assuming that the underlying environmental ethic of environmental law share the

same underlying environmental ethic for administrative environmental decision-

making, I tentatively conclude that administrative environmental decision-making

is similarly anthropocentric. This conclusion is subsequently confirmed in

Chapter 5 where I examine the extent to which sustainable development has

become the cornerstone of UK environmental decision-making today.

International Law on Nature Conservation

Gillespie,88 and Emmenegger and Tschentscher89 argued that there has been a

gradual shift in the ethical basis within international environmental law and policy

from anthropocentrism towards non-anthropocentrism. These writers are not the

first to make these claims,90 but they have gone the furthest in arguing

87 Wilkinson, D., supra, pp. 31-3.88 Gillespie, A., International Environmental Law, Policy and Ethics (Oxford: Clarendon Press,

1997), Ch. 7.89 Emmenegger, S., and Tschentscher, A., supra.90 See for example, Birnie, P. W., and Boyle, A. E., International Law and the Environment

(Oxford: Clarendon Press, 1992), pp. 211-3; Boyle, A. E., “The Role of International Human

Rights Law in the Protection of the Environment”, and Redgwell, C., “Life, the Universe and

Everything: a Critique of Anthropocentric Rights”, in Boyle, A. E., and Anderson, M. R., Human

Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), pp. 43 and 71

respectively; and D’Amato, A., and Chopra, S. K., supra. The views of these writers are more

tentative: Birnie and Boyle took the view (at p. 213) that there is some evidence of an incipient

51

affirmatively for the existence of such an ethic in international law. A number of

international instruments were cited to support their conclusion that international

environmental law had shifted to a non-anthropocentric paradigm. These

instruments typically refer to the intrinsic value of nature in their Preambles, but

when interpreted in context, these references seem more likely to be to nature’s

inherent value than to its intrinsic worth.

For example, Paragraph 3 of the Preamble of the Convention on the

Conservation of European Wildlife and Natural Habitats 1979,91 recognises “that

wild flora and fauna constitute a natural heritage of aesthetic, scientific, cultural,

recreational, economic and intrinsic value that needs to be preserved and

handed on to future generations”.92 The reference to wild flora and fauna as a

heritage to be preserved and handed on to future generations of humans makes

it quite clear that the underlying motivation for the conservation of nature in the

Convention cannot be other than anthropocentric. The operative provisions

support this interpretation. For example, the enhancement of protection only for

endangered and vulnerable species of wild flora and fauna under Articles 3 and

4, clearly suggest an underlying anthropocentric ethic for the Convention. The

explicit provision for “exploitation” of wild fauna under Article 7 also precludes a

non-anthropocentric motivation for the Convention.

Emmenegger and Tschentscher referred to the World Charter for Nature 1982

as the most important document that reflected a non-anthropocentric approach

transition towards a non-anthropocentric ethic, but recognised that the trend was still “in the

realms of developing international law”; Boyle further argued (at p. 52) that while some

international treaties are for human benefit, they were not exclusively so in the sense that the

concept of human benefit had been “drawn so broadly as to be indistinguishably ecocentric”; and

Redgwell conceded at (p. 87) that while international environmental law has increasingly

recognised the intrinsic worth of animals and nature, it falls short of the recognition of any

substantive rights of nature and animals. D’Amato and Chopra seem to be extrapolating from

the historical development of the international legal protection of whales that whales will have an

entitlement to life. They too acknowledge (at pp. 49-50) that international law is at present at the

“preservation stage”, but argue that the seeds of the final “entitlement stage” have been sown.91 ETS No. 104.92 Emphasis mine.

52

to environmental protection.93 It is true that the Charter declares a need for a

moral code of action, but read in its proper context; it seems that the moral

obligations in this respect are owed to other humans rather than to nature itself.

Furthermore, a review of the operative provisions in these instruments confirms

that their motivation is anthropocentric.

Paragraph 3(a) of the Preamble of the Charter states

Every form of life is unique, warranting respect regardless of its worth to man, and, to

accord other organisms such recognition, man must be guided by a moral code of action.

On its own, this paragraph may support both an anthropocentric as well as a

non-anthropocentric ethic. When read in the context of the remaining provisions

of the Charter however, it becomes untenable to argue that the Charter is non-

anthropocentric. Paragraphs 2, 4, and 5 of the Preamble, for example, stress

the benefit to present and future generations of humans in preserving other

species and the ecosystems. Even Paragraph 3 cautions against the exhaustion

of natural resources; the reference to nature as a resource is highly suggestive

of an anthropocentric conception of nature. Read as a whole, it is clear that the

motivation and justification for respect of other forms of life lie in human benefit.

In this context, Paragraph 3(a) seems more of an enlightened acknowledgement,

not unlike Leopold’s land ethic,94 of the need to look beyond the immediate

instrumental value of the environment and to consider its importance in

maintaining the stability and quality of the environment.

The operative provisions in the Charter confirm the anthropocentric character of

the Charter. Principle 3, for example, provides for an ecosystem to be valued

because of its rarity or ‘representativeness’ rather than because it has intrinsic

worth.95 This principle belies the Charter’s preambular proclamation of the

93 Emmenegger and Tschentscher, supra, p. 569. Gillespie also refers to the Charter to support

his argument, although he does not make the claim in such superlative terms as Emmenegger

and Tschentscher. See Gillespie, A., supra, p. 128.94 Leopold, A. C, “The Land Ethic” in A Sand County Almanac, supra.95 Wilkinson aptly refers to this as “stamp collection approach to nature protection” (See

Wilkinson, D., supra, p. 31).

53

uniqueness of all life. Other principles96 similarly reveal an approach to the

protection of nature that is more consistent with an anthropocentric underlying

ethic.

Likewise, reference in the Convention on Biological Diversity 199297 to the

intrinsic value of biological diversity alongside its ecological, genetic, social,

economic, educational, cultural, recreational values prima facie suggests that the

Convention seeks, inter alia, to protect the intrinsic worth of biological diversity.98

When interpreted in the context of the other paragraphs in the Preamble,99 and

the objectives of the Convention in Article 1 however, it seems more likely that

humans are the intended beneficiaries of the maintenance of biological

diversity.100 The very hands-on approach to achieving biological diversity

advocated in the Convention towards biodiversity and the provisions for

sustainable use and access to genetic resources suggest an anthropocentric

appreciation of biological diversity for its instrumental and inherent value rather

than its intrinsic worth.101 In the final analysis, Boyle’s comments on the

Convention are ‘spot on’:

Despite the Preamble’s recognition of the ‘intrinsic value’ of biodiversity, including, its

ecological, cultural and aesthetic aspects, this is not a ‘preservationist’ convention: it

assumes human use and benefit as the fundamental purpose for conserving biodiversity,

limited only by the requirement of sustainability and the need to benefit future generations.

Thus, references to conservation of biodiversity must be read in conjunction with the use

of its components.102

There is no doubt that international law has moved away from a narrowly

instrumental view of nature. References to “intrinsic value” and to obligations to

future generations increasingly appear in the Preambles of international

96 In particular, Principles 4, 6-10, and 23.97 (1992) 31 ILM 822.98 Emmenegger, S., and Tschentscher, A., supra, p. 547; and Gillespie, A., supra, p. 129.99 In particular, paras. 21 and 23.100 Contra the deep ecology position where biological diversity is an end in itself.101 See for example, Arts. 6, 10, and 14.102 Boyle, A. E., “The Convention on Biological Diversity” in Campiglio, L., et al, (eds.), The

Environment After Rio: International Law and Economics (London: Graham & Trotman, 1994), p.

115.

54

instruments, and sometimes even in the operative provisions. On their own, the

use of such terminology might suggest a shift to non-anthropocentric concern for

the environment, but when considered in the context of the instruments from

which they are drawn, such a suggestion becomes less credible. While the

motivation for environmental protection remains anthropocentric, non-

anthropocentric thinking has not been without effect. Rather than perceive

nature in purely instrumental terms, there has been a more enlightened

anthropocentric perspective, recognising the interrelatedness and

interdependence of the natural world of which we form a part.103

Animal Welfare and Nature Conservation in England

The main English wildlife protection and nature conservation legislation are the

Wildlife and Countryside Act 1981104 and the Conservation (Natural Habitats

etc.) Regulations 1994.105 The Countryside and Rights of Way Act 2000,106 will

give wildlife protection and nature conservation a major boost once Part III of the

Act comes into force.107 The 1981 Act and 1994 Regulations were passed

principally to implement the Council Directive 79/409/EEC of 2 April 1979 on the

conservation of wild birds108 and Council Directive 92/43/EEC of 21 May 1992 on

the conservation of natural habitats and of wild fauna and flora109 respectively,

so an examination of the underlying ethic of these Directives will shed light on

the derivative legislation.

The Birds Directive is concerned with the “conservation of all species of naturally

occurring birds in their wild state in the European territory of the Member

103 Kiss, A. C., and Shelton, D., International Environmental Law (London: Graham and Trotman,

1991), p. 11. See also Norton’s account of weak anthropocentrism in Norton, B. G.,

“Anthropocentrism and Nonanthropocentrism” (1984) Environmental Ethics 6: 131.104 Hereinafter “1981 Act”.105 SI 1994/2716. Hereinafter “1994 Regulations”.106 Hereinafter “2000 Act”.107 Pursuant to the Countryside and Rights of Way Act 2000 (Commencement No. 1) Order

2001, SI 2001/114, some provisions of the Act are already in force.108 [1979] OJ L103/1. Hereinafter “Birds Directive”.109 [1992] OJ L206/7. Hereinafter “Habitats Directive”.

55

States”.110 As the Preamble explicitly makes clear, conservation is aimed at “the

long term protection and management of natural resources as an integral part of

the heritage of the peoples of Europe…”. Under the Directive, Member States

are required to maintain or adapt the population in these species at or to “a level

which corresponds in particular to ecological, scientific and cultural

requirements, while taking account of economic and recreational

requirements”.111 While certain rare and endangered species are subject to

special conservation measures,112 other species, owing to their population level,

geographical distribution and reproductive rate may be hunted under controlled

circumstances.113 Even in respect of species of birds that are subject to special

conservation measures, the European Court of Justice has confirmed that

Member States may undertake projects that disturb these species and damage

their habitats if these projects have “offsetting ecological benefits”.114 The whole

mechanism for the protection of wild birds is thus one of active management for

the benefit of the “peoples of Europe”, in accordance with our conceptions of

what ought to be the proper balance of numbers for each species.

Besides protecting wild birds, the 1981 Act also protects certain other species of

animals (e.g., bats, reptiles, amphibians, rare mammals, fish and butterflies). It

is an offence to harm these animals, their nests, and their eggs.115 An

anthropocentric approach to protection of wildlife is evident from the exceptions

to the general prohibition: the killing or taking of game birds is permitted; and

pest species may also be killed or taken and their nests and eggs destroyed by

the owner or occupier of the land.116 Wild plants receive even less protection;

they may be destroyed at will by the landowner or on his behalf.117

110 Art. 1.111 Art. 2.112 Art. 4(1).113 Arts. 7 and 8.114 Commission of the European Communities v. Federal Republic of Germany Case C-57/89,

[1991] ECR I-883, para. 26.115 ss. 1, 9, 10, 11, and 16.116 s. 2(2).117 ss. 13(1) and 27(1).

56

European protected species of animals and plants species that are protected

under the Habitats Directive receive protection under the 1994 Regulations. Like

the protection scheme under the 1981 Act however, only selected species are

protected. Protection of animal species may also be subject to overriding public

interest of an economic or social nature118 or to the interest of “preventing

serious damage to livestock, foodstuffs, crops, vegetables, fruit, growing timber

or any other form of property or fisheries”.119 The introduction of the 2000 Act

does not change the underlying anthropocentric motivation for wildlife protection.

That is not to say that the provisions of the 2000 Act are not a significant

development in wildlife protection; on the contrary, when the relevant provisions

come into force, the enforcement of wildlife species controls under the 1981 Act

will be enhanced by the increase of enforcement powers and the creation of new

offences and penalties under the Act.120 This enhancement demonstrates a

greater commitment to the protection of wildlife, but does not necessarily signal a

change in the anthropocentric ethic of wildlife protection.

Other sources of legal protection for animals are also anthropocentric. The

Protection of Animals Act 1911, for example, protects captive or pet animals, the

ones with which we tend to be more intimate. Even then, protection is not

absolute; it only prohibits unnecessary suffering,121 the necessity or otherwise of

the suffering being determined according to whether it furthers a human

purpose.122 Like the 1911 Act, the objective of the Wild Mammals (Protection)

Act 1996 is animal welfare and the prevention of animal cruelty rather than

nature conservation. Again, only selected species of animals are conferred

favourable protected status, and even then, benefit to humans may justify cruelty

118 reg. 4(2)(e).119 reg. 40(5).120 2000 Act, s. 81 and Sch. 12.121 s. 1.122 According to Lord Coleridge, C.J. in Ford v. Wiley (1889) 23 QBD 203, 209-10, for example,

“That without which an animal cannot attain its full development or be fitted for its ordinary use

may fairly come within the term "necessary," and if it is something to be done to the animal it may

fairly and properly be done. What is necessary therefore within these limits, I should be of

opinion may be done even though it causes pain; but only such pain as is reasonably necessary

to effect the result”.

57

to such animals. Thus, one can only surmise that the underlying ethic of the

statute is anthropocentric.

Similarly, the Habitats Directive demonstrates an anthropocentric ethic with an

approach to the maintenance of biodiversity that takes account of “economic,

social, cultural and regional requirements”.123 This in itself suggests that the

maintenance of biodiversity is for its instrumental and inherent value rather than

because biodiversity has intrinsic worth.124 More explicitly, the Preamble

declares that “the maintenance of biodiversity may in certain cases require the

maintenance, or indeed the encouragement, of human activities”. Special areas

of conservation are designated to ensure the restoration or maintenance of

natural habitats and species of Community interest125 at a favourable

conservation status.126 Each Member State contributes to the creation of a

coherent European ecological network127 of sites hosting specified natural

habitat types and the habitats of specified species128 by maintaining and

developing features of landscape that are of major importance for wild fauna and

flora from the viewpoint of improving the ecological coherence of the European

network.129 While some species of wild fauna and flora are protected, others

may be exploited if this is compatible with their maintenance at a favourable

conservation status, this selective approach reflects an anthropocentric ethical

basis of environmental concern.

The provisions in the 2000 Act for the conservation of biodiversity also reveal an

123 Preamble.124 By this time, environmental protection had a firm base in the Treaty Establishing the

European Community. Art. 130R of the Treaty (now Art. 174 of the Consolidated Version of the

Treaty Establishing the European Community [1997] OJ C340/173, hereinafter “Consolidated

Version of the EC Treaty”) left no doubt that the underlying motivation for EC environmental

policy is anthropocentric.125 The criteria for “Community interest” are set out in Article 1(c) and are anthropocentric in

focus.126 Preamble para. 7. See definition of “favourable conservation status” in Art. 1. The exercise of

determining what is favourable is very much from a human centred perspective.127 Art. 3.2.128 Art. 3.1.129 Arts. 3.3 and 10.

58

anthropocentric approach. Under s. 74(1), ministers and government

departments are required, when exercising their functions, to have regard, as far

as is consistent with the exercise of its function, to the purpose of conservation

of biological diversity in accordance with the Convention on Biological Diversity

1992. As I had argued earlier, the purpose of and approach to conserving

biodiversity under the Convention is anthropocentric. By extension, the aims of

the Act must therefore also be construed in the same anthropocentric light.

Habitats are also protected for their instrumental and inherent value. Natural

habitats receive protection through site designation. The declared aim of

designation is to conserve sites for research and education. The two principal

designations are the Sites of Special Scientific Interest130 and National Nature

Reserves131. Sites may be designated SSSIs for their “special interest by reason

of any of its flora, fauna or geological or physiological features”.132 Once a site is

designated, the owner or occupier is not allowed to carry out a range of

potentially damaging operations on the site without first notifying the

conservation authority. An area may be declared and managed as an NNR if it

is expedient and in the national interest to do so. Such an area is then managed

for study or research into flora, fauna or geophysical interest, or for preserving

such features that are of special interest.133 The protection and management of

SSSIs will be given a boost under the 2000 Act. Conservation agencies will

have new powers to withhold consent to operations likely to damage the features

of special interest and to require owners and occupiers to conserve and/or

restore the features by reason of which an SSSI is of special interest.134

Specified authorities will also come under a new duty to “take reasonable steps,

consistent with the proper exercise of the authority's functions, to further the

conservation and enhancement of the flora, fauna or geological or

physiographical features by reason of which the site is of special scientific

interest”.135 Yet, the criteria for designation and protection of SSSIs and NNRs

130 Hereinafter “SSSIs”.131 Hereinafter “NNR”.132 1981 Act, s. 28.133 National Parks and Access to the Countryside Act 1949, s. 15.134 s. 75 and Sch. 9.135 Sch. 9, para. 28G.

59

remain anthropocentric - the protection of human interest in certain natural

aspects of the sites.

Conclusion

This brief review of law relating to the protection of wildlife and nature

conservation suggests that even within a supposedly ‘nature-oriented’ area of

law, the motivation for environmental protection is anthropocentric. We may

prima facie infer from this that other less nature oriented areas of law and

environmental decision-making such as town and country planning and pollution

control are at least, if not more, human-centred.

Properly adopting a non-anthropocentric environmental ethic will require that we

cannot rationally justify putting the worth of our life above the worth of non-

human life; there is no reason to suggest that the importance of a flourishing life

to a non-human is any less than the importance of a flourishing life to us unless

we resort to anthropomorphic criteria. Even if we accept that we are not at the

centre of the universe, and that nature exists for its own sake and not for human

benefit, it does not follow that there is any moral or practical reason to adopt a

non-anthropocentric approach to environmental decision-making and to

knowingly or instinctively value the survival of our species above the survival of

other species.136

The prevailing environmental ethic and its associated approach to environmental

decision-making remains anthropocentric, but not narrowly so. The purpose of

public protection of the environment is still human preservation and

advancement. As the most evolved species in terms of consciousness, we do

not seek mere biological survival; the quality of our existence matters as well.

Since we do not live in a vacuum, acting in our interests logically extends to

acting in way that maintains or improves the conditions favourable for us to

thrive. This may incidentally benefit other species, but this incidental benefit is

not and need not be the motivation for our actions.

136 See Murdy, W., H., “Anthropocentrism: a Modern Version” (1975) Science 187: 1168 for an

elaboration of this idea.

60

I show in the next chapter that enlightened anthropocentric environmental

decision-making requires us not only to take a holistic view of our relationship

with our environment; more importantly, it also requires us to re-examine our

relationship with one another within and between generations in respect of how

we manage natural resources. It is not in our common interest to adopt an

egoistic approach to environmental decision-making; the primary objective of

environmental decision-making must be to contribute to sustainable

development, by ensuring intra-generational and intergenerational equity in

accessing natural resources for human needs.

61

Chapter 3: Sustainable Development as Justice

In this chapter, I examine the concept of sustainable development. I argue that

sustainable development articulates the goal to which must actions must be

oriented if we are ensure the continued availability of natural resources in order

for the human species to continue to flourish. Yet, as long as disparity in

economic and political power exists, the economically and politically influential

will always have little incentive to voluntarily put the common interest before their

narrow self-interest, and to share their privileged access to natural resources

with the disenfranchised.

The Emergence of Sustainable Development

The concept of sustainability was borrowed from the technique in forest

management practised by central European foresters in the eighteenth and

nineteenth centuries,137 and was originally primarily an economic management

technique,138 not motivated by ecological or biological considerations.139

The words “sustainable development” were not used at the Stockholm

Conference, but it is generally acknowledged as the starting point in the

evolution of the concept. Even before the conference, there had been a growing

concern about the failure of prevailing models of development to improve the

well-being of developing countries. The conventional wisdom in the 1960s had

been that rapid industrialisation in the footsteps of the West was the key to

modernisation and progress for the poorer developing countries. Development

practitioners assumed that rapid economic growth and industrialisation in

developing countries would automatically remove poverty through a "trickle

down" effect on the poor and the underprivileged. GNP growth was the measure

137 Schutt, P., “Sustainability of Forests: an Attempt at a Biological Interpretation” in MacDonald,

C. J., (ed.), Environmental Ethics: Sustainability, Competition, and Forestry (1992). As at 2 April

2002, online at http://www.ethics.ubc.ca/papers/susdev.html#schutt.138 According to Schutt, the technique involved cutting a quantity of timber equivalent to 1/100 of

the total volume every year, in a rotation period of 100 years. This procedure assured a

permanent economic use of the forest.139 Schutt, P., supra.

62

of success and improvements in social conditions would follow it. By the end of

that decade however, the conventional wisdom had been discredited. It became

clear that while the development policies pursued in some of the developing

countries had been successful in economic terms, social objectives had not been

met. Thus, while the GNP in many poor countries had improved, the benefits of

economic growth were only enjoyed by a privileged few in these countries.

Increasing income inequality led to a worsening rather than improvement of the

welfare of the majority of the population. The local environment on which they

depended for their livelihood was systematically degraded, and the local

population became poorer and hungrier. Most of them continued to live lives far

below the minimum levels required for a decent human existence, deprived of

education, health and sanitation. In the words of the Independent Commission

on International Development Issues,140

The hope that faster economic growth in developing growth in developing countries by

itself would benefit the broad masses of poor people has not been fulfilled. In many

countries there are many people excluded from economic growth as well as from

participation in shaping their own environment; they live in conditions of absolute poverty

and misery unworthy of mankind.141

At the same time, the developed countries had come to realise that the

environmental impacts of industrialisation could not be confined to the country in

which they originated. They were particularly concerned with the effect of

environmental destruction in the South, such as loss of rainforests,

desertification, loss of biodiversity, and population pressures, on the quality of

life in affluent countries. The developing countries saw this concern for the

environment by the developed world as a threat to their development through

industrialisation. It seemed to them that the rich countries, having made their

fortunes by exploiting their own, and sometimes their former colonies’ natural

resources and degrading the environment, were now anxious to try to prevent

the poorer countries from doing the same. Furthermore, the rich countries

140 Hereinafter “ICIDI”.141 Independent Commission on International Development Issues, North-South: a Programme

for Survival. The Report of the Independent Commission on International Development Issues

under the Chairmanship of Willy Brandt (London: Pan Books, 1980), p. 24. Hereinafter “Brandt

Report”.

63

seemed to overlook their grossly disproportionate consumption of natural

resources to support their affluent lifestyle.142

Concern about the failures and the environmental consequences of existing

models of development started coming together at a preparatory meeting for the

Stockholm Conference. At that meeting at Founex, Switzerland, the affluent

countries accepted that lack of development could be as important a cause of

environmental destruction as development. Paragraph 4 of the Preamble of the

Stockholm Declaration on the Human Environment 1972143 subsequently came

to reflect this acceptance. There was also a vague consensus that

developmental and environmental goals could be harmonised to the benefit of

both, but no elaboration on the means for achieving this.

The Stockholm Conference was not the first attempt by the international

community to reach agreement on environmental matters.144 It was, however,

the first major attempt to involve all the nations of the world as a concerted,

constructive response to global environmental problems, and to look beyond the

immediate problems to deeper issues. The Conference was of great importance

because representatives from both industrially developed and developing

countries attended it, and it was recognised for the first time that environmental

degradation was related to industrialisation as well as underdevelopment.145

Also, for the first time, governments discussed the universal nature of

environmental degradation and environmental protection as a global policy

issue.

The Stockholm Declaration expressed an anthropocentric concern for the effect

of environmental harm on the physical, mental and social well-being of

humans.146 Natural resources had to be safeguarded for the benefit of the

142 Reid, D., supra, pp. 17-8.143 (1972) 11 ILM 1416. Hereinafter “Stockholm Declaration”.144See Sands, P., Principles of International Environmental Law, Vol. 1: The Legal and

Institutional Framework (Manchester: Manchester University Press, 1994), pp. 25-34, for a

description of the international legal developments from the second half of the 19th century up to

the Stockholm Declaration, supra, in 1972.145 Preamble para. 4.146 Preamble paras. 1 and 3.

64

present and future generations of humans. The developed countries would

transfer substantial quantities of financial and technological assistance to assist

the developing countries in accelerating their development.147 While all states

retained their right to exploit their own natural resources,148 the environmental

policies of all states were required to enhance the development potential of

developing countries.149 Finally, developing countries would receive technical

and financial assistance to preserve and improve the environment.150

Economic and social developmental goals and environmental goals were both to

be considered important. These goals were to be integrated and coordinated

through “rational planning”; with natural resources coming under the

management of “appropriate national institutions” rather than the agencies

responsible for development.151 The Conference was not so much concerned

with the failure of development itself, so the question of redefining development

goals was not addressed. The emphasis was on the proper management of the

negative side effects of development, i.e., environmental degradation.

Environmental resources had to be safeguarded for all people and for their

posterity.152

The Stockholm Declaration and its accompanying Action Plan for the Human

Environment153 advocated an essentially top-down technical approach to

environmental management, relying on the “rational management of resources”

and “rational planning”154 through the application of science and technology in

the identification, avoidance and control of environmental risks, and solution of

environmental problems.155 There did not seem to be any role for the public

except that adults and the younger generation needed to be educated in

environmental matters in order to “broaden the basis for an enlightened opinion

147 Principle 9.148 Principle 21.149 Principle 10.150 Principle 12.151 Principle 17.152 Preamble para. 7; and Principle 1.153 (1972) 11 ILM 1421.154 Principles 13 and 14.155 Principle 18.

65

and responsible conduct by individuals, enterprises and communities in

protecting and improving the environment”.156 Nevertheless, the Declaration did

assert the “right to freedom, equality, and adequate conditions of life”157 and

called for support for the “just struggle of the peoples of all countries against

pollution”.158

By the time the World Conservation Strategy: Living Resources Conservation for

Sustainable Development159 was published in 1980, the term sustainable

development had been coined, and the concept had become an important part of

conservationist and environmentalist thinking.

In 1987, the WCED published its report, Our Common Future.160 The

Commission was chaired by Gro Harlem Brundtland, the then Prime Minister of

Norway, and comprised 22 distinguished world figures, including foreign

ministers, finance and planning officials, policymakers in agriculture, science and

technology, with a clear majority of members from developing countries to reflect

world realities. These Commissioners had wide experience in, and came not

only from environment or development related disciplines, but from all areas of

vital economic and social decision-making, both nationally and internationally”.161

The UN General Assembly had tasked the WCED to “propose long-term

environmental strategies for achieving sustainable development by the year

2000 and beyond …”.162 Recognising that the causes of failures of

‘development’ and “failures in the management of the human environment”163

were “interlocking crises”,164 the WCED rejected calls to limit its considerations

to only environmental issues.165

156 Principle 19.157 Principle 1.158 Principle 6.159 World Conservation Union (IUCN), World Conservation Strategy: Living Resources

Conservation for Sustainable Development (Gland, Switzerland: IUCN, 1980).160 World Commission on Environment and Development, supra.161 Ibid., p. xii.162 Ibid., p. ix.163 Ibid., p. 2.164 Ibid., p. 4.165 Ibid., p. x.

66

The WCED adopted a transparent and participatory approach to its work and

strategies so as to ensure that it received the broadest range of views and

advice on the key issues. It held deliberative meetings, site visits and public

hearings in all regions of the world, and invited government officials, scientists

and experts, researchers, non-governmental organisations and the general

public to express their concerns and submit their views and advice on issues of

common concern that transcended national boundaries and different cultures.166

The WCED defined sustainable development as “development that meets the

needs of the present without compromising the ability of future generations to

meet their own needs”.167 It had become clear that the world’s natural

resources, strained as they already were, were in no position to accommodate

the development of the rest of the world, through rapid industrialisation and

conspicuous consumption, to the standard of living being enjoyed by the already

developed countries. New models and strategies for development were

necessary. Over the years, many different definitions of sustainable

development have surfaced, but the WCED’s definition has remained the most

authoritative and most commonly cited.

The WCED stressed the need to change the misconception of development as

economic growth - development was not about becoming richer. It was what

humans did to improve their lot;168 and was concerned with the satisfaction of

essential human needs and aspirations.169 While economic growth was

important, the emphasis should be on the quality and not the quantity of

growth.170 Growth had to be less intensive in material and energy use, and more

equitable in impact.171 It had to focus on human needs and well-being of a non-

economic nature, e.g., education and health, clean air and water, and the

166 Ibid., pp. 358-9.167 Ibid., p. 43.168 Ibid., p. xi.169 Ibid., p. 54.170 Ibid., p. 52.171 Ibid., loc. cit..

67

protection of natural beauty.172 It had to focus on removing disabilities from

disadvantaged groups,173 and diverting its benefits to where it was needed most

– the people living in poverty.174

The WCED also reiterated the need for integration of developmental and

environmental issues. The Stockholm Conference had started to integrate the

two, but in the years after the Conference, the environment had once again

come to be treated as an isolated entity and managed as such. In the opinion of

the WCED, further integration of environmental and developmental issues was

required both internationally and nationally; not only were the two linked, they

were two sides of the same issue and were inseparable.175 It was not enough

simply for development agencies to decide on development issues and leave the

environmental agencies to deal with and mitigate the adverse environmental

impacts of those decisions, as the Stockholm Declaration had proposed.

Environmental policy had to focus on the sources of environmental effects rather

than the effects themselves, and every agency had to be directly responsible

and fully accountable for ensuring the ecological as well as economic

sustainability of their policies and programmes.

For nations in which the essential needs of the majority of the population

remained unmet,176 reviving economic growth was a necessity.177 Growth

however, had to take account of the realities of the stock that sustained it and

not deplete the natural resources required to meet the needs of future

generations.178 It also had to be more equitable in impact179 to ensure that the

poor received their fair share of the resources to sustain that growth.180

Economic growth in industrialised nations was welcomed because it would

172 Ibid., p. 53.173 Ibid., loc. cit..174 Ibid., pp. 49-52.175 World Commission on Environment and Development, supra, p. 4.176 Ibid., p. 8.177 Ibid., p. 44.178 Ibid., p. 52.179 Ibid., p. 51.180 Ibid., p. 8.

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support the growth of the developing countries,181 but had to follow the principles

of sustainability and non-exploitation of others.182 Finally, because high rates of

population growth compromised the goal of meeting needs, population growth

had to be restrained. This was however not a matter of controlling the numbers;

as development increased well-being and security, population growth could be

expected to slow down.183

Beyond a technical management approach to attaining physical sustainability;184

i.e., living within ecological limits, the WCED noted the link between

environmental and economic problems, and social and political factors,

particularly the distribution of power and influence within society.185 For the

Commission, sustainability implied a concern for equity between generations, a

concern that had to be logically extended to equity within each generation.

Physical sustainability could only be secured if development policies took

account of social considerations such as changes in access to resources and the

distribution of costs and benefits.186

Our Common Future led to the UN General Assembly convening the United

Nations Conference on Environment and Development187 at Rio in 1992, to

“elaborate strategies and measures to halt and reverse the effects of

environmental degradation in the context of strengthened national and

international efforts to promote sustainable and environmentally sound

development in all countries”.188 At the Earth Summit, delegates negotiated and

agreed, inter alia, to two key documents, the Rio Declaration189 and Agenda

21.190

181 Ibid., p. 51.182 Ibid., p. 44.183 Ibid., p. 98.184 Ibid., pp. 45-6.185 Ibid., pp. 37-8.186 Ibid., p. 43.187 UN GA Res. 43/196 (1988). Hereinafter ”Earth Summit”.188 Rio Declaration, supra, para.3.189 Ibid..190 Ibid..

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Like the Stockholm Declaration, the Rio Declaration represents the broad

consensus of the international community. It affirms an anthropocentric

approach to environmental and developmental issues,191 and declares its goal to

be the establishment of a new and equitable global partnership; and the respect

of the interests of all and protection of the integrity of the global environmental

and developmental systems.192

Under the Declaration, States acknowledge that they have “common but

differentiated responsibilities” to achieve sustainable development.193 The

developed countries accept that they have to reduce and eliminate

unsustainable patterns of production, while the developing countries agree to

promote “appropriate demographic policies”.194 States continue to have the

sovereign right to exploit their own natural resources, but must ensure that they

do not cause environmental damage to areas outside the limits of their

jurisdiction. They still have a right to develop, but must fulfil this right so as to

meet the needs of present and future generations.195 The eradication of poverty

worldwide, and in particular the needs of the least developed countries, is the top

priority and the responsibility of all States and all people.196

The Rio Declaration not only makes explicit the concept of sustainable

development that has been evolving in the intervening two decades between the

Stockholm Declaration and Our Common Future, it also contributes to its further

evolution. It is the first international instrument to accept and give prominence to

emerging principles of sustainable development, such as the “precautionary

approach”197 and the “polluter pays” principle.198

Accompanying the Rio Declaration, Agenda 21 is the blueprint and action plan

for sustainable development. Like the Declaration, it is a negotiated document

191 Principle 1.192 Preamble.193 Principle 7.194 Principle 8.195 Principle 3.196 Principle 5.197 Principle 15.198 Principle 16.

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that reflects the consensus of the international community and their commitment

towards the implementation of national strategies for the attainment of

sustainable development. It gives effect to the principles of the Declaration by

proposing national strategies, plans, policies and processes on various aspects

of sustainable development.

Ten years on, the Rio Declaration and Agenda 21, along with Our Common

Future, continue to provide the definitive understanding of what sustainable

development means. In 1997, the international community through the enabling

resolution for a Special Session, agreed to meet for the purpose of an overall

review and appraisal of the implementation of Agenda 21. They agreed not to

renegotiate the Rio Declaration and Agenda 21. Instead, discussions focussed

on “the fulfilment of commitments and the further implementation of Agenda 21

and related post-Conference outcomes”.199 The 19t h Special Session of the

General Assembly adopted a Programme for the Further Implementation of

Agenda 21, reaffirming the principles of the Rio Declaration and the status of

Agenda 21 as the fundamental programme of action for achieving sustainable

development. Similarly, the summit held in Johannesburg in 2002, popularly

named Earth Summit 2, only looked to “adopt concrete steps and identify

quantifiable targets for better implementing Agenda 21”.200 Sustainable

development therefore remains at the heart of environmental decision-making.

Sustainable Development as Distributive Justice

The WCED made it very clear that sustainable development is not simply a

matter of tagging on environmental considerations as a constraint on the present

mode of development, namely through economic growth and the increase of

man-made wealth; it is far more radical than that. Recognising that current

models of economic development had failed to meet the needs of the present

generation, and at the same endangered the ability of future generations to meet

their needs, sustainable development requires a new mode of development

whereby the “exploitation of resources, the direction of investments, and the

199 UN GA Res. 51/181, para. 5 (20 January 1997).200 Official Website for the Johannesburg Summit 2002. As at 27 Marrch 2002, online at

http://www.johannesburgsummit.org/html/basic_info/basicinfo.html.

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orientation of technological development” are in harmony with the goal of

enhancing current and future potential to meet human needs and aspirations.201

What lies at the core of sustainable development? What is its essence? The

WCED made it clear that at the core of sustainable development lie “equity and

the common interest”.202 Within the framework of sustainable development,

environmental decision-making is our common interest in equitably sharing

access to natural resources across space and time for the meeting of human

needs.

Justice Versus Humanity

The duty to meet the needs of the present generation of the poor without

compromising the ability of future generations to meet their needs is more than a

duty to act humanely. The difference between justice and humanity is more than

a matter of semantics. Humanitarianism is an act of kindness to relieve

distress,203 whereas justice is a duty to give to a person that to which he is

entitled as a matter of right; a duty to act justly is more imperative than a duty to

act humanely. The law may not consider its function to include the enforcement

of humanitarian duties, but there is a more compelling case for the law to act

when it is a matter of justice. Barry captured the distinction between

humanitarianism and justice succinctly:

We cannot sensibly talk about humanity unless we have a baseline set by justice. To talk

about what I ought, as a matter of humanity, to do with what is mine makes no sense until

we have established what is mine in the first place.204

201 World Commission on Environment and Development, supra, p. 46.202 Ibid., loc. cit..203 Barry, B., “Humanity and Justice in Global Perspective”, in Pennock, J. R., and Chapman, J.

W., (eds.), NOMOS XXIV: Ethics, Economics and the Law, (New York: New York University

Press, 1982), p. 219.

p. 219.204 Ibid., p. 249.

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The WCED clearly intended sustainable development as a matter of justice

rather than humanitarianism by referring to “equity between generations” and to

“social equity within each generation”205. It pointed out that “our inability to

promote the common interest in sustainable development is often a product of

the relative neglect of economic and social justice within and among nations”,206

and believed that “people can build a world that is more prosperous, more just,

and more secure”.207 Noting that the poor do not get their “fair share of the

resources to sustain their economic growth”,208 and that as a generation, “we

borrow environmental capital from future generations with no intention or

prospects of repaying”,209 the WCED clearly considered the present

arrangement for sharing access to natural resources unjust. There is therefore

no question of sustainable development being a matter of justice rather than

merely a matter of humane behaviour.210

As a conception of distributive justice, sustainable development has two main

components. Firstly, it is concerned with the justice of access to finite natural

resources to meet human needs;211 everyone, whether from the present or the

future, is entitled to equitable access to natural resources to meet their needs.

For this purpose, the WCED draws a fundamental distinction between basic

needs and aspirational needs. Basic needs have to be met so that every person

can live above a basic level of decency. Beyond basic needs, aspirational needs

can legitimately be pursued provided everyone also has the opportunity to satisfy

their aspirations,212 and consumption standards do not exceed ecological limits

and that which all can reasonably aspire to. Secondly, sustainable development

is concerned with the fairness of the distributive effects of the use of natural

205 World Commission on Environment and Development, supra, p. 43.206 Ibid., p. 49.207 Ibid., p. 1.208 Ibid, p. 8.209 Ibid., loc. cit..210 The Rio Declaration, supra, reflects the same position, declaring its goal to be that of

“establishing a new and equitable global partnership” (Preamble); and requiring that

development “equitably meet [the] developmental and environmental needs of present and future

generations” (Principle 3).211 World Commission on Environment and Development, supra, p. 8.212 Ibid., p. 44.

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resources; no one should suffer a disproportionate share of harm from the

depletion of natural resources.213

Intra-generational Justice

As the WCED rightly pointed out, access to natural resources is clearly

inequitable; the economically and politically weak invariably live in the worst

environments.214 The privileged have the economic and political means to

command access to the prime natural resources for meeting their needs while

the poor and politically disenfranchised must scrape the bottom of the barrel of

meagre natural resources in order to survive. Many people in the poorer

countries rely directly on their local environment for a livelihood but are forced to

resort to destroying this local environment with no regard for the future in order

to meet immediate survival needs.215 As natural resources begin to dwindle, the

wealthy and powerful will continue to retain access to these resources while the

less privileged will have to learn to cope with increasingly fewer resources or

perish. Internationally, affluent countries have the means to ‘import’

sustainability through the non-sustainability of other countries.216 Because of

their superior purchasing power in a global market economy, they are largely

able to shield themselves from the environmental costs of their affluence by

import natural resources at relatively affordable cost to themselves, while

exporting their wastes to poorer countries where environmental concerns are

less of a priority because there are more urgent and immediate survival issues to

contend with. When environmental disasters finally strike, most of the victims

come from the impoverished in poor communities; as noted by the WCED,

“[l]acking food and foreign exchange reserves, their economically vulnerable

governments are ill equipped to cope with such catastrophes”.217

213 Ibid., p. 48. I use the term “deplete” not only to refer to the reduction of the stock of natural

resources, but also to include the degradation of the capacity of natural resources to assimilate

our wastes.214 Ibid., p. 49.215 Ibid., p. 28.216 Pearce, D., Markandya, A., and Barbier, E., supra, p. 45.217 World Commission on Environment and Development, supra, p. 30.

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Intra-generational justice requires development that gives overriding priority to

meeting the basic needs of all and extends to a fair opportunity to satisfy their

aspirations for a better life.218 Basic needs take priority over aspirational needs

because the former are the minimum requirements for a dignified human life.

While it would be good for everyone to meet their aspirations, it would be

inequitable for some to pursue these needs at the expense of the basic needs of

others.

Meeting Basic Needs

The overriding priority of meeting basic needs has been endorsed in numerous

international legal instruments.219 Based on the human right to a decent life,220 it

includes provision for the needs that prevent a person from leading such a

decent life. Respecting humanity means that where resources permit, each

person should at least have access to the resources to live a dignified life.

Meeting basic needs is not only important because it is necessary for human

dignity. It is also an investment in human resources in the long term. Where

basic needs remain unmet, people cannot choose to use the natural resources in

their local environment prudently. They often resort to destroying their

immediate environment by depleting and overusing local natural resources in

order to meet day-to-day challenges to their survival.221 By doing so, they

effectively destroy their medium and long-term chances of survival, as well as

deprive future generations of access to these natural resources to meet the

latter’s needs. Only after their basic needs have been met can people be

reasonably expected to choose a less destructive way of life.

People with unmet basic needs often also have little security in their lives.

Having more children to help contribute to household income, and later as

218 Ibid., p. 44.219 See for example, Universal Declaration of Human Rights, 1948 (UN Doc. A/810, at 71),

Article 25.1; Stockholm Declaration, supra, Preamble para. 4; Rio Declaration, supra, Principle 5.220 World Commission on Environment and Development, supra, p. 41.221 Ibid., p. 28.

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security for old age compensates for this insecurity.222 Because of high infant

mortality rates, people have more children to make allowance for premature

deaths, but this only aggravates the problem as a rising population means that

there will eventually be even fewer resources for meeting each person’s basic

needs. People can only freely determine the number of children to have when

there is an assurance of an adequate livelihood and a reduction of the infant

mortality rate.223 When basic needs are met, people no longer become a liability

- mere consumers of resources, but a human resource.224 In the long term, a

healthy and educated humanity will be able to better meet their needs from

dwindling natural resources.

The obvious basic needs include hunger, warmth, and shelter (including energy,

water, sanitation and health care).225 Disadvantaged people, such as tribal

groups and nomads may need additional resources to meet these needs.226

However, food-aid or outright charity alone is insufficient and may sometimes

even be counter-productive; non-emergency food aid may actually harm Third

World countries by reducing their self-reliance.227 The need for sustainable

livelihoods is also a basic need.228 Sustainable livelihoods may in turn require

formal education and training.229

The WCED equates the meeting of basic needs with the eradication of

poverty,230 which it defines as a “level of income below which a person or

household cannot afford on a regular basis the necessities of life”.231 This

contradicts its own view that development is not about “what poor nations should

222 I am simplifying this point. Often, unbridled population growth can also be traced to gender

inequality.223 Ibid., p. 106.224 Ibid., pp. 108-9.

225 Ibid., pp. 54-5.226 Ibid., pp. 53, and 114-6.227 Ibid,, p. 122. Principle 1 of the Rio Declaration, supra, also refers to the entitlement of

humans to a “healthy and productive life”.228 Ibid., p. 54. The WCED described it as the most basic of needs.229 Ibid., pp. 103, and 111-4.230 Ibid., p. 43. See also Principle 5 of the Rio Declaration, supra.231 Ibid., p. 50.

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do to get richer”.232 If meeting basic needs eradicates poverty, then poverty can

be understood as the deprivation of access to resources to meet basic needs.

As pointed out in the Human Development Report 2000 and the World

Development Report 2000/2001: Attacking Poverty, poverty is multi-dimensional.

At the heart of poverty are deprivations that prevent people “from leading the

kind of life that everyone values”;233 the deprivation of capabilities “to live a long

and healthy and creative life, to be knowledgeable, to enjoy a decent standard of

living, dignity, self-respect and respect of others”.234

It is not enough to identify the basic needs; access to resources to meet them

must be found. Within poorer countries, deprivation of basic needs may be a

result of both production and distribution. On a global scale, however, the

problem of meeting basic needs is one of distribution, not scarcity of

resources.235 As long as basic needs remain unmet in a world of finite natural

resources, it would be inequitable to divert resources to the pursuit of

aspirational needs.

Satisfying Aspirations for a Better Life

Once basic needs have been met, natural resources can be channelled towards

satisfying aspirations for an improved quality of life.236 Aspirational needs are of

a lower urgency than basic needs. They are generally more subjective than

basic needs in that there is a greater diversity between individuals as to what the

good life entails. While a person’s aspirational needs may require a

disproportionate exclusive access to natural resources, but sustainable

development is only concerned with satisfying legitimate aspirational needs. As

the WCED pointed out, this means that consumption standards beyond the basic

minimum must not go beyond the “bounds of the ecological possible and that

232 Ibid., p. xi.233 World Bank, World Development Report 2000/2001: Attacking Poverty (New York: Oxford

University Press, 2001), p. 1.234 United Nations Development Program, Human Development Report 2000 (Oxford: Oxford

University Press, 2000), p. 73.235 Ibid., p. 118.236 World Commission on Environment and Development, supra, p. 44.

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which it is reasonable for all to aspire”.237 In similar vein, Principle 8 of the Rio

Declaration calls for the reduction and elimination of unsustainable patterns of

consumption.238

Intergenerational Justice

The requirement that consumption standards beyond the basic minimum must

not go beyond the bounds of the ecologically possible may be understood as

one aspect of the requirement of intergenerational justice that future generations

should not be bequeathed with fewer resources than that inherited by the

present generation for meeting needs.239 Like us, future generations will have

needs to be met and for which they will therefore also require access to natural

resources. We may not know what all the needs of future generations will be,

but can expect that some of these needs, e.g., hunger, and thirst, etc., will not be

very different from present needs even though the way these needs are met may

change. Other needs will not be like anything imaginable today. When we

deplete natural resources beyond ecological limits without regard for future

generations, we unjustly jeopardise the future generations’ ability to meet their

needs.240

Noting that it was unrealistic to expect to leave all natural resources intact,241 the

WCED’s advocated the pursuit of a moderately “strong” conception of

237 Ibid., loc. cit.238 I understand the Declaration to be referring not just to temporally unsustainable consumption

standards, but also to spatially unsustainable consumption standards. The two are intimately

related; one without the other would not make much sense.239 World Commission on Environment and Development, supra, p. 43. In that sense, our duty

not to deprive future generations of their ability to meet their needs may be said to be negative.

This is in contrast to our positive duties to take action to meet the needs of the present

generation.240 Ibid., p. 44.241 Ibid., p. 45. Such an absolute approach is also unnecessary since we are presumably

bequeathing more capital resources and knowledge to future generations than we inherited. An

improving and increasing stock of such man-made resources can to some extent compensate for

a reduction in the stock of natural resources. The question of course is how much natural

resource can be safely displaced in the face of improvements in man-made resources. As we

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sustainability - that natural and man-made resources are in principle not perfect

substitutes for one another242 - by adopting the maintenance of the present

quantity and diversity of natural resources as a baseline. It classified natural

resources into renewable and non-renewable resources.243

Living natural resources were renewable because they could reproduce or

regenerate. Non-living natural resources could neither reproduce nor

regenerate, but could be created by recurring natural processes, e.g., the

production of oxygen from photosynthesis. The depletion of renewable natural

resources was not without effect on the ecosystem; particular when these

resources were part of a complex and interlinked ecosystem.244 The depletion of

renewable natural resources beyond its reproduction or regeneration rate could

therefore lead to significant irreversible changes in the ecosystem during the

period of renewal. Thus, while the WCED acknowledged that “every ecosystem

everywhere cannot be preserved intact”, it considered it generally necessary for

sustainability to only allow a rate of depletion of renewable natural resources no

greater than the rate of regeneration and natural growth of these resources,

“after making allowances for the system-wide effects of exploitation”.245

The WCED was less stringent with regard to non-renewable natural resources.

It accepted that irreversible depletion of these resources was inevitable.

Depletion was therefore permissible, but the rate of depletion had to take into

account “the criticality of that resource, the availability of technologies for

minimizing depletion, and the likelihood of substitutes being available …

approach ecological thresholds, the further depletion of natural resources may, even if

accompanied by continuing increases in man-made resources, have dire consequences for

future generations.242 A “weak” conception of sustainability on the other hand would regard all resources as capable

of being valued and expressed in a single metric; the improvements in the quantity and quality of

human resources can be economically valued and substituted for an equivalent value of a

quantity of a natural resource.243 World Commission on Environment and Development, supra, pp. 45-6.244 Ibid., p. 45.245 Ibid., loc. cit..

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Sustainable development requires that the depletion of non-renewable resources

should foreclose as few options as possible”.246

The WCED therefore sought to minimise the depletion of natural resources to

the extent feasible. The maintenance of the existing quantity and diversity of

natural resources and protection of the integrity of all ecosystems might not have

been a realistic or necessary goal, but it acted as a useful starting point. We

should not unnecessarily deplete natural resources faster than these resources

are renewable or generated. If irreversible depletion is unavoidable, we must

minimise depletion to “foreclose as few future options as possible”.247 Any

unavoidable depletion must always take place slowly and cautiously to allow

time to anticipate and mitigate unexpected effects on the ecosystems.

The Interdependence between Intra-generational and Intergenerational

Justice

The two principles of justice have been treated separately for the purpose of

analysis. They are, however, not independent of one another: the realisation of

one can contribute to the realisation of the other,248 but neither can be achieved

without the other. The present generation and future generations are part of a

continuous timeline, so it is not realistic to draw a rigid line between the two and

treat them differently. Furthermore, it is inconceivable that we should

contemplate the temporal but not spatial sustainability of natural resource use.

As the WCED has observed, intergenerational justice logically extends to intra-

generational justice.249

Intergenerational justice is more attainable if it is pursued hand in hand with

intra-generational justice. A generation whose members share access to

246 Ibid., p. 46.247 Ibid., loc. cit..248 Depending on the conceptions of intra-generational and intergenerational justice adopted, the

correlation between the two is not necessarily always positive. See Dobson, A., Justice and the

Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice

supra.

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resources equitably is likely to require fewer resources in meeting its needs than

one that does not.250 Even if we bequeath the same quantity and quality of

resources to the next generation as we have inherited, there is no assurance

that 80% of the next generation will have access to these resources to meet their

basic needs if 80% of the present generation are unable to access these

resources to meet their basic needs now. To ensure adequate access to

resources for everyone in each of the future generations, we must therefore start

to narrow the present inequality in access to resources today. When the present

generation establishes just institutions for sharing access to natural resources,

and these institutions endure into the future, they ensure that individual members

of each generation will also share access to natural resources equitably to meet

their needs.251

Similarly, intra-generational justice becomes more difficult to achieve if it is

pursued in the absence of intergenerational justice. As the WCED explained,

“[A]s a system approaches ecological limits, inequalities sharpen”;252 intra-

generational justice become more difficult to attain as the ecosystems begin to

collapse and it becomes increasingly impossible even to meet all basic needs,

let alone any aspirational needs.

Intra-generational justice and inter-generational justice in access to natural

resources must not only be pursued simultaneously, they must also be pursued

globally. Sustainable development is global not least because the environment

249 World Commission on Environment and Development, supra, p. 43.250 In an intra-generationally unjust society, the affluent deplete a disproportionate per capita

share of natural resources for their needs, and the poor reproduce in unsustainable numbers,

and increasingly exploit whatever resources they can for day-to-day survival, with no regard of

the sustainability of such exploitation in the long term.251 Beckerman, for example, considers that even before we consider how we should share

natural resources with future generations, our prior obligations are to bequeath to them a more

decent society in terms of its political and social institutions, social norms, degree of personal

liberty and respect for human rights. See Beckerman, W., “Sustainable Development and Our

Obligations to Future Generations”, in Dobson, A., (ed.), Fairness and Futurity: Essays on

Environmental Sustainability and Social Justice (Oxford: Oxford University Press, 1999), p. 71, at

89-90.252 World Commission on Environment and Development, supra, p. 49.

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is ultimately globally connected. As the title of the WCED report, Our Common

Future, suggests, in the long term, those in each generation enjoying privileged

access to natural resources cannot shield themselves from the problems of the

poor and marginalised in their generation; continued environmental degradation

in one part of the world will eventually degrade the environment in other parts of

the world.

Motivation for Sustainable Development

So, why should we strive for sustainable development? Surely it is not in our

narrow self-interest to do so. Understanding our motivation for sustainable

development has important implications for the way we structure our decision-

making procedures. In particular, as I show in the next chapter, the procedures

for environmental decision-making need to be structured so as to stimulate not

suppress the motivation for sustainable development.

The Common Interest

The aim of sustainable development is to secure “sustained human progress not

just in a few places for a few years, but for the entire planet into the distant

future”.253 Its underlying premise is that “every human being … has the right to

life, and to a decent life”, whether they are from different communities or from

future generations.254 The WCED pointed out that in order to achieve

sustainable development, individuals must act in the “common interest” of

humanity, but our inability to act in the common interest is often a product of

economic and social injustice.255 According to the Commission, the most

important means of arousing this motivation to act in the common interest is

253 Ibid., p. 4. Emphasis mine.254 Ibid., p. 41. Emphasis mine. Similarly, Principle 1 of the Stockholm Declaration, supra,

recognises a right to “a life of dignity and well-being”; and Principle 1 of the Rio Declaration,

supra, refers to an entitlement “to a healthy and productive life in harmony with nature”.255 Ibid., loc. cit..

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through effective participation in local community decision-making processes to

help each person to “articulate and effectively enforce their common interest”.256

In the Brandt Report, the ICIDI had considered that international reform that went

no further than the mutual interest of all parties would be inadequate; it would

excessively reflect the dominant interests of the powerful because “the ‘haves’

are rarely willing to relinquish their control and their resources and share them

with the ‘have-nots’”.257

The WCED too did not take the view that was necessarily in everyone’s narrow

self-interest to act in the common interest;258 it acknowledged that the search for

common interest would seldom produce solutions that would leave everyone

better off – “there are winners and losers”.259 In circumstances of gross disparity

of economic and political power, public participation in environmental decision-

making that is motivated by narrow self-interest will not contribute to sustainable

development as each participant jostles to maximise personal gain. Instead, one

can expect the outcome in such circumstances to mirror the distribution of

economic and political power amongst those affected by the decision.

Intergenerational justice would not appeal to the present generation, just as

intra-generational justice would not appeal to each generation’s privileged

members. The WCED’s reference in Our Common Future to the common

interest was therefore intended to mean something more than the “mutual

interest” referred to in the Brandt Report.260 Read together with the WCED’s

reference to the “unity of human needs”,261 the motivation for sustainable

development must be understood to be the ‘common interest of humanity’, akin

to the “human solidarity” referred to in the Brandt Report.262

256 Ibid., pp. 46-7.257 Independent Commission on International Development Issues, supra, pp. 64-5.258 World Commission on Environment and Development, supra, p. 46.259 Ibid., p. 48.260 Independent Commission on International Development Issues, supra, Ch. 3.261 World Commission on Environment and Development, supra, p. 41.262 Independent Commission on International Development Issues, supra, p. 64.

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Thus, our motivation for sustainable development is not to benefits ourselves

individually, but to benefit our wider common interests as humans; as humans,

we share a common interest in the flourishing of humanity. We are dependent

on natural resources for our flourishing and recognise the same is true of

everyone else, present and future. In using these natural resources, we are

therefore motivated to act in terms of generalizable principles that all members of

humanity will reasonably accept is entirely proper for anyone else in the same

situation in order for all to flourish, whether on the giving or receiving end.

Barry came to similar conclusion about the motivation for justice in his theory of

justice founded on impartiality.263 According to him, we recognise that we are

only one of many moral equals, and by virtue of this reason, we are

consequently not entitled to act on reasons that we would not ourselves accept

were it offered by other moral equals in like circumstances as reasons for their

actions. According to Scanlon, the “desire to be able to justify [their] actions to

others on grounds they could not possibly reasonably reject” is quite strong in

most people, as they would go to considerable lengths in order to avoid

admitting that their actions and institutions are unjustifiable on impartial

grounds.264

Rawls has a similar formulation for impartiality-motivated justice.265 For him,

people choose principles of justice when they put themselves in the hypothetical

original position behind a “veil of ignorance”, i.e., without knowledge of how

“various alternatives will affect their own particular case and are obliged to

evaluate principles solely on the basis of general considerations”.266 Nagel

offers yet another formulation, suggesting that each person must choose

principles as though he expects to “lead all the possible lives in question, not as

263 Barry, B., A Treatise on Social Justice, Volume 1: Theories of Justice, (Berkeley: University of

California Press, 1989), pp. 284-90.264 Scanlon, T. M., “Contractualism and Utilitarianism” in Sen, A., and Williams, B., Utilitarianism

and Beyond (Cambridge: Cambridge University Press, 1982), p. 103, at 116-7. Scanlon adds

that unreasonableness is to be determined according to what a person motivated to come to

informed unforced general agreement on principles with others similarly motivated would accept

or reject.265 Rawls, J., A Theory of Justice (Oxford: Oxford University Press, 1973), pp. 136-42.266 Ibid., p. 136.

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a single super-life but as a set of distinct individual lives, each of them a

complete set of experiences and activities”.267 The foregoing are all monological

formulations in that they require a person to hypothetically deduce generalizable

principles that others could reasonably accept. In the next chapter, I consider a

dialogical conception of impartiality whereby generalizable principles emerge

through actual dialogue and consensus with people from diverse perspectives,

and explain why such a conception is superior to a monological one.

Conclusion

The WCED made it clear that development is what we do to improve the quality

of our lives. Development must be sustainable in spatial and temporal terms. It

must give priority to meeting basic needs. Only when basic needs have been

met should natural resources be diverted to provide opportunities to pursue

legitimate aspirations, i.e., aspirations that only require consumption standards

within ecological limits and what everyone can reasonably aspire to. Sustainable

development is a global concept.268 Partial sustainability is an oxymoron, firstly

because modern development takes place in the context of the global economy.

Today, virtually no country is self-sufficient in meeting its needs and completely

insulated from the external economic environment. Secondly, the natural

environment in each country is also spatially interconnected to the global

environment; ecosystems are not closed systems and certainly are not insulated

within political boundaries.269

The WCED drew attention to the fact that the environmental crisis is not

essentially a scientific or economic problem, to be solved by scientists or

economists, although scientific and economic inputs to environmental decision-

making will be essential. Instead, it is a social problem requiring a major social

267 Nagel, T., The Possibility of Altruism (Oxford: Clarendon Press, 1970), p. 141. Nagel

distinguishes his formulation from the utilitarian model of impartiality whereby the choice of

principles of justice is determined on the assumption that all lives are amalgamated into one life.

He argues that the utilitarian model is unacceptable because it ignores the distinction between

persons; sacrificing an individual’s happiness for another’s is very different from sacrificing one

gratification for another within a single life” (at p. 138).268 Ibid., p. 40.269 World Commission on Environment and Development, supra, p. 38.

85

reorientation in the way humans organise to improve their condition, taking into

account the finite resources available.

We know what is just, yet, we may not always act justly because we do not

always think impartially. Nagel, for example, observed that, “[w]hen the stakes

are high, the temptations of solipsistic disassociation are considerable”; the

motivation to behave impartially is merely “our deep-seated susceptibility to non-

egoistic reasons, and our capacity to recognize them as requirements if the

issue is forced upon us with sufficient clarity”. 270

The challenges ahead cannot be underestimated, and the solutions are not

straightforward. As noted by Commoner,

None of us can possibly blueprint a specific “plan” for resolving the environmental crisis.

To pretend otherwise is only to evade the real meaning of the environmental crisis: that the

world is being carried to the brink of ecological disaster not by a singular fault, which some

clever scheme can correct, but by the phalanx of powerful economic, political, and social

forces that constitute the march of history. Anyone who proposes to cure the

environmental crisis undertakes thereby to change the course of history.271

Similarly, the WCED was under no illusion that the pursuit of sustainable

development would be easy:

We do not pretend that the process is easy or straightforward. Painful choices have to be

made. Thus, in the final analysis, sustainable development must rest on political will.272

Sustainable development is truly radical but not impossible to achieve. We have

the capacity to make environmental decisions in the common interest, but years

of conditioning of thinking individually in terms of narrow self-interest, not least

by present social structures and institutional arrangements, both national and

international, has dulled this capacity. We must start thinking and acting

impartially in the common interest if we want to achieve sustainable

development. The WCED suggested how this might be achieved: education,

270 Ibid., p. 124.271 Commoner, B., supra, p. 300.272 World Commission on Environment and Development, supra, p. 9.

86

institutional development, and law enforcement.273 More importantly, in

circumstances of disparity in economic and political power, effective public

participation can facilitate the articulation and enforcement of the common

interest.274 I consider in the next chapter, what such “effective” public

participation entails.

273 Ibid., p. 46.274 Ibid., p. 47.

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Chapter 4: Public Participation’s Contribution to Sustainable

Development

Sustainable development tells us which outcomes are desirable and why. It is

however, not self-implementing; processes are needed to achieve desired

outcomes. I consider in this chapter, one aspect of the environmental decision-

making process - why and how public participation in environmental decision-

making can contribute to sustainable development. In doing so, I do not reject or

discount the argument that in addition to contributing to better substantive

outcomes, public participation may also have other roles to play in enhancing the

quality of environmental decision-making.1

Public participation in environmental decision-making did not become important

only with the emergence of sustainable development. In the 1960s, partly in

response to a growing demand by many groups for more opportunity and for

more say in the working out of policies which affected them, not merely at

election time, but continuously as proposals were being hammered out and

implemented, the Committee on Public Participation in Planning2 stressed the

importance of securing public participation in development planning:

People should be able to say what kind of community they want and how it should

develop … It matters to us that we should know that we can influence the shape of our

community so that the towns and villages in which we live, work learn, and relax may

reflect our best aspirations … The pace, intensity and scale of change will inevitably

bring bewilderment and frustration if people affected think it is to be imposed without

respect for their views.3

1 In particular, public participation may be an important prerequisite for the legitimacy of public

decision-making in democratic societies, as the Committee on Public Participation and Planning,

and McAuslan, infra, explain below. Eckersley has also argued that public participation and

ecological values are both grounded in the principle of autonomy, so that one implies the other.

See Eckersley, R., “Greening Liberal Democracy: The Rights Discourse Revisited”, supra, p.

223.2 Also known as the Skeffington Committee.3 Committee on Public Participation and Planning, People and Planning: Report of the

Committee on Public Participation and Planning (London: HMSO, 1969), paras. 7 and 8.

88

McAuslan had also argued in the 1980s that the right to public participation was

the third “competing ideology” of planning law, based on the abstract principles

of democracy and justice:

all who are likely to be affected by or who have, for whatever reason, an interest or

concern in a proposed development of land or change in the environment should have the

right of participation in the decision on that proposal just because they might be affected or

are interested.4

Sustainable Development and Public Participation

Public participation in environmental decision-making is an integral aspect of

sustainable development. The WCED reported in Our Common Future that “a

political system that secures effective citizen participation in decision making” is

necessary but not sufficient for the pursuit of sustainable development.5 The

Commission further noted that problems of resource depletion and

environmental stress arise from disparities in economic and political power; the

economically and politically marginalised are often also the ones excluded from

environmental decisions and most adversely affected by environmental

degradation.6 Insofar as local natural resources were concerned, their

management should be decentralised, and local democracy strengthened.

Public participation and citizen initiatives in environmental decision-making

provided the necessary community knowledge and support for enforcing the

common interest. Without public participation, individuals are isolated and

unwilling to assume that other individuals will behave in a socially responsible

fashion. As a result, they would choose to pursue narrow self-interest.7 When

individuals interacted to collectively make public decisions, they received mutual

assurance and encouragement to look beyond their own interests and support

4 McAuslan, P., Ideologies of Planning Law, supra, p. 5. McAuslan’s concern with public

participation appeared to be more about its contribution to legitimising planning decisions rather

than improving outcomes. This distinction need not concern us here, as the point I’m making is

simply that the ideology of public participation had existed even before the emergence of the

concept of sustainable development.5 World Commission on Environment and Development, supra, p. 65.6 Ibid., p. 46.7 Ibid., p. 47.

89

decisions based on the common good. On a larger scale, public participation in

the form of public inquiries and hearings on the development and environment

impacts of large-scale projects also helped in drawing attention to different points

of view.8 Public participation in environmental decision-making therefore served

two important functions in the transition to sustainable development. It

neutralised, or at least reduced the imbalance in economic and political power in

accessing natural resources; and it contributed different perspectives to

decision-making.

The Rio Declaration9 and Agenda 2110 echo this view. While the WCED had

only dealt with the issue of public participation briefly in Our Common Future,

Principle 10 of the Rio Declaration raised the importance of public participation

further:

Environmental issues are best handled with the participation of all concerned citizens, at

the relevant level...

The principle also fleshes out the components of public participation: citizens are

to be given access to information concerning the environment, the opportunity to

participate in decision-making processes, and effective access to judicial and

administrative proceedings including redress and remedy.11

The Declaration does not provide any reason for the importance of public

participation in environmental decision-making; it is left to Agenda 21 to expound

on the importance of broad public participation in decision-making as a

prerequisite for achieving sustainable development. The importance of public

participation in environmental decision-making is underscored by the fact that of

the four sections in Agenda 21, a whole section 3 of Agenda 21 has been

devoted to public participation.12 Essentially, the participation of the major social

8 Ibid., pp. 63-4.9 Supra.10 Supra.11 Principle 10.12 Other chapters in the Agenda, namely, chapters 3, 10, 14, 36, and 37, also dealt with the role

of the public in environmental decision-making, although not exclusively.

90

groups13 improves the quality of environmental decision-making because it

draws on the diverse perspectives and expertise of these groups. Public

participation is also essential for mobilising the support of these groups for the

implementation of programmes.14

More recently, the contribution of public participation in environmental decision-

making to the substantive quality of decisions was given a significant boost with

the entry into force of the Aarhus Convention.15 The Convention stresses that

public participation in environmental decision-making contributes to “the

protection of the right of every person of present and future generations to live in

an environment adequate to his or her health and well-being”.16 It will be the first

international instrument to bind contracting States to a legal duty to provide

public participation in environmental decision-making in specified circumstances.

Building on Principle 10 of the Rio Declaration, it focuses on the three

requirements of access to environmental information; public participation in

decision-making; and access to justice. Binding obligations are imposed on

contracting States to include the public in the types of decisions for which

environmental impact assessments will usually be required. In respect of

environmental plans and programmes; and of policies and executive regulations

however, the Convention’s provisions for public participation are more

exhortatory.

There is no doubt that public participation in environmental decision-making is

crucial to the achievement of sustainable development, and Agenda 21 provides

clear reasons why this is so. Aside from its contribution to the effective

implementation of environmental decisions, the value of broad-based public

13 Supra, Section III. These groups are women; youth and children; indigenous people; non-

governmental organisations; local authorities; workers and trade unions; business and industry;

the scientific and technological community; and farmers.14 See generally, para. 23.1, supra. See also paras. 24.1 (women); 25.2 (youth); 27.3 (NGOs);

28.1 (local authorities); 29.1 (workers and trade unions); 30.1 (business and industry); 31.1

(scientific and technological community); and 32.4 (farmers).15 The Convention has entered into force, but has not yet been ratified by the EU or the UK, both

s igna to r ies to i t (See webs i te o f the Conven t ion Secre ta r ia t ,

http://www.unece.org/env/pp/ctreaty.htm; online as at 16 May 2002).16 Article 1.

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participation is in the breadth of perspectives that such participation is able to

offer. In particular, as I explain below, these diverse perspectives help ensure

that environmental decisions are more likely to be based on impartial ethical and

evidentiary judgements that promote the common interest, and on reliable

knowledge.

The Exercise of Ethical Judgements

Sustainable development is concerned with meeting human needs and

aspirations, with overriding priority given to the meeting of basic needs.

Distinguishing between basic needs and aspirational needs is not a

straightforward. Certainly, physiological needs that are clearly necessary for

survival qualify as basic needs, so technical inquiry will be necessary. What

constitutes basic needs will also have to take account of what is clearly

technologically and ecologically viable, and technical input will also be highly

valuable in these matters. While technical contributions are not unimportant, the

distinction between basic needs and aspirations, and the choice of means for

meeting needs, is fundamentally a question of normative judgement based on

our ethical value judgements. What does it mean to be human? What should

count as essential for well-being? Where competing needs of aspirations have

the same level of ethical priority, there will also be a need to strike some balance

between meeting such needs or aspirations. Furthermore, where various means

exist for meeting a particular need, normative judgement will be required in

choosing between the different means, taking into account the impact of

alternative means on other present needs and on the ability of future generations

to access resources to meet their needs.

The Royal Commission on Environmental Pollution17 described values as

beliefs, either individual or social, about what is important in life, and thus about the ends

or objectives which should govern and shape public policies. Once formed, such beliefs

may be durable. It is also characteristic that they may be both formed and modified as a

result of information and reflection. Environmental and social values, in particular, are

17 Hereinafter “RCEP”.

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not necessarily preformed or fixed but, for many people, emerge out of debate,

discussion and challenge, as they encounter new facts, insights and judgements

contributed by others.18

According to Perhac, values can inform environmental decisions in three ways;

as ethical judgements, as expressions of our non-moral preferences, and as

evidentiary judgements.19 Ethical judgements reflect our public values about the

common good of the community to which we belong, as opposed to our non-

moral values. The identification of basic needs is partially an ethical judgement

of what should count as an essential requirement for survival and well-being -

the minimum quality of life that we could not unjustly withhold deprive from other

humans whom we recognise as having the same intrinsic worth as we do.

Theoretically, a person could make ethical judgements to justly distinguish

between basic needs and aspirations by using monological and hypothetical

reasoning; as mentioned in the previous chapter, there are a number of

formulations that can help to ensure that these ethical judgements are impartial.

In reality however, we do not always possess the diversity of perspectives and

knowledge needed to be aware of and evaluate impartially the competing needs

at stake in an environmental decision. Furthermore, as long as we are only

required to hypothesise in our minds what similarly impartially-motivated people

might or might not reasonably accept, or to satisfy ourselves that our ethical

judgements can be justified on grounds that others cannot possibly reject, there

will always be a greater possibility that our judgement may be clouded or tainted

by our personal values or interests and make biased judgements.

A less presumptuous and more contingent method for arriving at impartial ethical

judgements would be to have impartially motivated individuals who are

potentially affected by or interested in a proposed environmental decision to

actually reach consensus on the appropriate ethical judgement by articulating

their preliminary ethical judgements, and systematically testing and publicly

18 Royal Commission on Environmental Pollution, Twenty-First Report: Setting Environmental

Standards (Cm 4053) (London: HMSO, 1998), para. 7.3.19 Perhac, R. M. Jr., “Comparative Risk Assessment: Where Does the Public Fit In?” (1998)

Science, Technology, and Human Values 23(2): 221, 230-5.

93

justifying these judgements to each other. Such a method provides greater

assurance that personal or institutional bias will be counteracted or at least

reduced.

Although discursive dialogue does not guarantee the exercise of impartial ethical

judgements, it is inherently more likely than isolated monological reasoning to

encourage this. Jacobs suggested three reasons why this might be so.20 Firstly,

arguments would need to be put in terms of the common good in order to be

persuasive or justified in terms of universal principles. Secondly, participants

would be exposed to a wider range of perspectives than is possible with self-

reflection, thereby facilitating the adoption of a less personal perspective.

Thirdly, a sense of community amongst participants would be created through

human contact under conditions of equality and respect, thereby encouraging

sympathy and concern for others, mutual trust and the recognition of common

interests.

Other proponents for greater public participation in public decision-making have

expressed similar views about the moralising effects of public participation. Mill,

for example, described participation in public functions as the “school of public

spirit”, because a private citizen is made to feel himself one of the public and to

balance interests impartially and apply principles and maxims directed towards

the general good.21 Barber had also argued that communities grow in a

participatory democracy, as private individuals become free citizens.22 For

Cohen, regularly subjecting a person to a process of “public reasoning” – where

participants tested and justified their ethical judgements using generalised

principles that other participants cannot reasonably reject - was likely to improve

his moral character as it led him to a better insight into his own needs and a

greater awareness of his subjectivity.23

20 Jacobs, M., “Environmental Valuation, Deliberative Democracy and Public Decision-Making

Institutions”, in Foster, J., (ed.), Valuing Nature?: Economics, Ethics and Environment (London:

Routledge, 1997), p. 211, at 220.21 Mill, J. S., Considerations on Representative Government (Gateway edition) (1861: Chicago:

Henry Regnery, 1962), pp. 72-3.22 Barber, B. R., Strong Democracy: Participatory Democracy for a New Age (Berkeley:

University of California Press, 1984), pp. 151-2.23 Cohen, J., “Democracy and Liberty”, in Elster, J., (ed.), Deliberative Democracy (Cambridge:

94

In order for public discourse to effectively facilitate the impartial exercise of

ethical judgement, it is essential that participants test and justify their arguments

under a wide range of perspectives, so that the judgement is truly justified in

terms of generalizable principles. Dialogue must also be genuine in the sense

that they must take place freely between individuals seeking consensus by

appeal to reason rather than resort to authority or force.

Miller identified an additional benefit of ethical judgement through public

deliberation – ethical judgements based on false empirical beliefs would be more

open to change through new knowledge acquired from others in the course of

deliberation.24 As the RCEP pointed out, values are not necessarily preformed

or fixed; they emerge out of dialogue, and transform the pre-existing values of

individual participants as they encounter new facts, insights and judgements

contributed by other participants.

The conditions for effective public discourse were also identified in Agenda 21.

The Agenda encourages broad-based participation in environmental decision-

making, particularly from the major social groups whose communities where they

live or work are potentially affected.25 Furthermore, participants must be able to

give their views independently,26 and this can only happen when they are not

cowed by threats or pressure from other participants, intimidated by jargon used

in discourse, or compelled by economic necessity into a consensus.

Independence also requires some measure of equality. Participants must have

and be recognised to have equal standing to make normative claims and to

challenge the normative claims of other participants on generalized grounds that

others cannot reasonably reject. Their opportunity to contribute to ethical

judgement should not be constrained by their relative political and economic

power. As such, special provision may have to be made to assist participants

Cambridge University Press, 1998), p. 185.24 Miller, D., “Deliberative Democracy and Social Choice”, in Held, D., (ed.), Prospects for

Democracy: North, South, East, West (Cambridge: Polity Press, 1993), p. 74, at 81-2.25 Agenda 21, supra, paras. 23.3.26 Ibid., para. 27.1.

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who, although in a formally equal participation forum, may actually have a

diminished standing in the deliberation process. Inter alia, participants would

need to have comparable access to relevant information and knowledge and the

resources to present their arguments. Financial assistance could for example,

be given to enable “weaker” participants to hire their own consultants or carry out

their own research on relevant issues. While such assistance may not entirely

eliminate resource-inequality, it can make a significant difference in mitigating

the inequality. To the extent that conditions of equality do not hold, the

consensus on values that emerges may be manipulated by sheer power rather

than a product of shared understanding. As noted by Arnstein,

participation without redistribution of power is an empty process for the powerless. It

allows the power-holders to claim that all sides were considered, but makes it possible

for only some of those sides to benefit. It maintains the status quo.27

The Social Construction of Knowledge

Impartial ethical judgement in environmental decision-making is not enough to

achieve sustainable development; environmental decision-making must also be

based on reliable knowledge. Beyond identifying the range of needs that ought

to be given priority, consideration must be given to the various ways in which

these needs can possibly be met while keeping within ecological limits as far as

possible. This calls for knowledge about the impact of proposed developmental

activities on human needs and the environment.28 Often, the ecological impact

of proposed developmental activities is highly complex; many variables interact

within an ecosystem and between ecosystems in ways that we have yet to

fathom. Nature exists in a state of constant but irregular flux. While we cannot

prescribe precisely the environmental conditions are most suited to meet human

27 Arnstein, S. R., “A Ladder of Citizen Participation” (1969) Journal of the American Institute of

Planners 35: 216, 216.28 Although I deal with values and knowledge separately for the purpose of exposition, it should

not be forgotten that they are intimately connected. Our knowledge and perceptions shape our

values. At the same time, what we think we know or believe to be true is coloured in part by the

values we hold. The articulation of values and construction of knowledge therefore cannot take

place independently from each other.

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needs, we can be reasonably certain that the continued survival and flourishing

of humanity and many other organisms will be seriously jeopardised outside a

very limited range of environmental conditions. The same is true of humans and

social systems. Humans are complex beings; unlike other animals, their

behaviour is influenced in varying degrees by a mix of impulse/instinct, self-

reflection, and social interaction. Just as our knowledge of the ecosystems is

limited, we also only have limited knowledge about the way human societies

work, and cannot predict with certainty how proposed developmental action will

affect society. To compound the complexity, ecosystems and human systems

also often interact with each other so that changes in ecosystems affect social

systems and vice versa. Because of this complexity, predicting the impacts of

proposed developmental activities is not an easy task; unintended

consequences often crop up in places and at times we least expect.

Furthermore, even when significant changes to people or the environment are

detected, these changes are not always traceable to any single cause or

combination of causes because different permutations of human activities under

different environmental conditions contribute to additive, synergistic or

counteractive effects on people and the environment. In any case, because

natural and human systems are in a constant state of flux, our knowledge of

these systems can only be tentative and must be continuously revised to keep

up with changes. The problem does not only lie in the uncertainty of our

knowledge, but more insidiously, in our ignorance. Ignorance exists when we do

not know what the indeterminate elements in our knowledge are, and do not

know where the limits of our knowledge lie. Ignorance is a more insidious

problem than uncertainty because when we are ignorant, we are not only unsure

about the answers, but do not even ask the right questions.29 For example,

there could not have been any contemplation of the risk of catching Creutzfeldt-

Jacob disease (CJD), the human form of transmissible spongiform

encephalopathy (TSE), posed by allowing the rendered remains of sheep, cattle

and other animals to be routinely incorporated into animal feed. The first cases

of Bovine Spongiform Encephalopathy (BSE) were only officially acknowledged

in 1987,30 even though the disease had already started to infect cattle in the

29 Wynne, B., and Mayer, S., “How Science Fails the Environment” (1993) New Scientist 1876:

33.30 BSE Inquiry, Report of the BSE Inquiry (London: HMSO, 2000), Vol. 3, para. 1.7.

97

South West of England as early as in the 1970s but simply remained

undiagnosed and unreported,31 or misdiagnosed and simply ascribed to other

known disorders such as hypomagnesaemia because the existence of BSE was

not known at that time.32 The first documented official acknowledgement of the

possibility that BSE might transmit to humans only took place in 1986,33 and the

first report of an association of a case of CJD with a farm, after the emergence of

BSE in 1986, took place in 1989.34 As long as the possibility of catching CJD

remained unknown, the question of the likelihood of such a threat could not

possibly arise.

Contribution to Scientific Knowledge

Knowledge can be broadly categorised as scientific/technical knowledge and lay

knowledge. Ideally, what sets scientific knowledge apart from local knowledge is

that the former is based on systematic inquiry or empirical study, while the latter

is more anecdotal and haphazardly transmitted, if at all. Scientific knowledge

often enjoys an elevated status as a source of knowledge due to its reputation as

being the result of rational pursuit by disinterested scientists of the objective truth

about the natural world. By purporting to base their decisions on ‘sound’ science

rather than on other grounds perceived to be less objective, environmental

decision-makers hope to avoid charges of bias or irrationality (as well as

minimise the risk of legal challenge).35

The professed objectivity of scientific knowledge is however often overstated

resulting in the faith in scientific knowledge sometimes being misplaced. There

is no doubt that scientific knowledge is a valuable source of knowledge. Yet, it is

important to bear in mind that despite its noble aspirations, scientific inquiry is

not the perfectly rational procedure for understanding the human and

environmental impacts of human activity we sometimes make it out to be. As

31 BSE Inquiry, Report of the BSE Inquiry (London: HMSO, 2000), Vol. 3, paras. 1.41 and 1.46.32 Ibid., Vol. 2, para. 7.3(ii).33 Ibid., Vol. 3, paras. 5.4-5.7.34 Ibid., Vol. 8, para. 5.3.35 Porter, T. M., Trust in Numbers: The Pursuit of Objectivity in Science and Public Life

(Princeton, New Jersey: Princeton University Press, 1995), p. 8.

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observed by Beck, the methodical scepticism of the sciences has hitherto been

limited to the objects of science, with the foundations of scientific knowledge

remaining exempt from scepticism.36 By its own internal logic, claims of

scientific rationality to superior knowledge must be treated with scepticism since

they remain scientifically unproven.

Like other types of knowledge, scientific knowledge is bounded by ignorance.

As Wynne and Mayer pointed out, no scientific method would ever be able to ask

all the right questions about what we do to the environment, let alone find the

answers”.37 The question of what environmental impacts will result from a

proposed developmental activity therefore cannot be answered perfectly even

with the best science. Scientific knowledge also suffers from problems of

uncertainty; it often has to rely on less than accurate or complete empirical data,

arbitrary extrapolations, and debatable interpretations of empirical data.38 Thus,

even when we suspect that a particular activity may be contributing to certain

environmental changes, we are not often able to incontrovertibly confirm or

refute the suspicion; the available evidence does not always point firmly to one

conclusion. The eventual emergence of a scientific consensus, if and when it

happens, is often on the basis of inconclusive evidence and compromise within

the scientific establishment rather than strictly on the basis of incontrovertible

evidence backed by rational analysis.

These limitations of scientific knowledge have been acknowledged by the RCEP:

We believe it is essential that environmental policies should have a scientific basis, and

that there is an adequate scientific basis for most such policies as present. There is,

however, a widely held view, even an expectation, that scientists can provide the answer

to whatever issues are under consideration. Science is not a matter of certainties but of

36 Beck, U., Risk Society: Towards a New Modernity, Ritter, M., (trans.), (London: Sage

Publications, 1992), p. 163.37 Wynne, B., and Mayer, S., supra, p. 35.38 This point is illustrated by the RCEP’s case study on the scientific assessment of the human

health toxicity and ecotoxicity of chemical substances in the course of setting environmental

standards in Chapter 2 of its report, supra. See also McEldowney, J. F., and McEldowney, S.,

Environmental Law and Regulation (London: Blackstone Press, 2001), pp. 55-64 for examples

on the limitations of scientific understanding.

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hypotheses and experiments. It advances by examining alternative explanations for

phenomena, and by abandoning superseded views. It has provided very powerful tools

for gaining understanding of complex environmental processes and systems. At the

same time there are many cases in which damage has been caused to health or the

natural environment because of gaps in understanding. Such incompleteness is inherent

in the nature of science, especially environmental science, which deals with ‘the world

outside the laboratory”. In a scientific assessment of an environmental issue there are

bound to be limitations and uncertainties associated with the data at each stage.

Standard setting and other decision-making procedures should recognise that.39

Aside from the inherent limitations of the scientific method, the fact that science

is ultimately a human endeavour introduces a further limit to the objectivity of

scientific knowledge. Scientists, the high priests of scientific knowledge, are

never perfectly disinterested in their own scientific inquiry and their review of the

work of their peers. Polanyi’s Personal Knowledge: Towards a Post Critical

Philosophy,40 and Kuhn’s The Structure of Scientific Revolutions41 have

effectively dispelled the myth of scientific inquiry as a value-free activity, and

scientific knowledge as solely the product of logic and objective observation and

experimentation. Indeed, Polanyi even considered complete objectivity in

scientific knowledge a false ideal because knowledge was necessarily partly

subjective.42 For him, the acquisition of knowledge was an active art requiring

the personal participation of the acquirer through the exercise of tacit skills that

could only be imparted from master to apprentice rather than transmitted by

prescription.43 Kuhn’s description of the development of scientific knowledge is

equally illuminating. In the early stages of any science, scientific knowledge is

anything but coherent. Before the formation of scientific paradigms, data

gathering is often random, and different scientists describe and interpret the

same range of phenomena differently, according to a body of beliefs that is

extrinsic to the phenomena observed.44 As a science matures, the scientific

39 Ibid., para. 2.66.40 Polyani, M., Personal Knowledge: Towards a Post-Critical Philosophy (London: Routledge &

Kegan Paul, 1958).41 Kuhn, T. S., The Structure of Scientific Revolutions (2nd edition) (Chicago: University of

Chicago Press, 1970).42 Polanyi, M., supra, p. 18.43 Ibid., p. 53.44 Kuhn, T., supra, pp. 15-7.

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consensus begins to converge on a particular paradigm, and it becomes

increasingly rigid and resistant to change.45 The paradigm begins to shape

scientific research, and scientists seek to explain observed data within its

theoretical framework, thereby overlooking alternative interpretations of such

data.46 As increasingly serious anomalies arise within the prevailing paradigm,

some will remain loyal to the paradigm on which they have acquired their

professional reputation and either ignore the anomalies or try to defend it by

devising articulations and ad hoc modifications to eliminate the conflict.47 Other

scientists, particularly the younger or newer in the field, with little commitment to

the prevailing paradigm, will begin to search for and establish competing

imperfect explanations.48 As new theories emerge to challenge a paradigm, the

outcome of the challenge becomes not exclusively a matter of logic and

experiment, but is influenced by a whole host of factors including judgements

about which set of observed ‘facts’ it is more significant for a paradigm to be able

to explain, the understanding of the competing vocabulary and apparatus,

worldviews, religion, personality and personal idiosyncrasies, and even the

nationality or reputation of the innovator and/or his teachers.49

There is no objective standard as to what constitutes sound science any more

than there is any objective standard as to what constitutes scientific proof.50

Ultimately, whether actual scientific practice has met the requisite standard of

proof in a particular context is a matter of evidentiary judgement under the

influence of the professional and personal values of members of the scientific

45 Ibid., p. 64.46 Ibid., p. 76.47 Ibid., p. 78.48 Ibid., pp. 90-1.49 Kuhn T. S., supra, pp. 148-53.50 In other words, what constitutes sound science or scientific proof is established through the

inter-subjective judgements of scientists rather than derived using irrefutable scientific methods.

Consider, for example, how starkly different sets of scientific criteria for inferring carcinogenicity

applied by scientists from the US Environmental Protection Agency and the UK Pesticides Safety

Precautions Scheme led to opposite conclusions in the US and in the UK respectively about the

toxicity of two chemical pesticides on the same evidence. See Gillespie, B., Eva, D., and

Johnston, R., “Carcinogenic risk assessment in the USA and UK: The case of Aldrin/Dieldrin”, in

Barnes, B., and Edge, D., (eds.), Science in Context: Readings in Sociology of Science (Milton

Keynes: Open University Press, 1982), p. 303.

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community. Barke and Jenkins-Smith, for example, found that life scientists

considered nuclear power and radioactive wastes more risky than other

scientists did. Women and younger scientists were also found to be more risk

averse than their peers when it came to endorsing dose-response models for

policy purposes. 51

Apart from being influenced in their professional judgements by the dogmas of

their scientific training or social characteristics, scientists are, to varying degrees,

also vulnerable to other forms of external influence in the course of performing

their work or peer reviewing the work of others. For example, their reliance on

research funds or need for access to confidential or proprietary data to conduct

research may subject them to subtle or even explicit pressure from those who

control access to such funding or data over the way the research is framed,

conducted, or interpreted. Scientists are also consciously and subconsciously

vulnerable to personal52, career,53 and institutional54 interests and values in

51 Barke, R. P., Jenkins-Smith, H. C., and Slovic, P., “Risk Perceptions of Men and Women

Scientists”, in Gerrard, S., Turner, R. K., and Bateman, I. J., (eds.), Environmental Risk Planning

and Management (Cheltenham: Edward Elgar, 2001), p. 291.52 Such as friendship, commitment to a social cause, loyalty to colleagues, financial reward,

peerage.53 Such as employment, promotion, ability to obtain research funds, prizes and awards,

acceptance and respect of peers, appointment to prestigious committees.54 Institutions are set up with mandates or mission orientations, and have allotted budgets.

These considerations influence the focus of research. For example, it was noted that the

scientific knowledge on the link between and BSE and Variant Creutzfeldt-Jakob Disease (vCJD)

would have developed differently if it had been investigated by the Department of Health instead

of by the then Ministry of Agriculture, Fisheries and Food (“MAFF”). According to the Report of

the BSE Inquiry, supra, Vol. 2, paras. 7.56-7.62, had the bulk of the BSE research come within

the province of the Department of Health instead of the MAFF, the research would have been

undertaken by external scientists subject to open competition and external peer review instead of

by in-house scientists already subject to research budget cuts. When faced with evidence that a

cat had been infected with Feline Spongiform Encephalopathy (FSE), the Chief Veterinary Officer

continued to deny any link between BSE and CJD because he considered that there was no

evidence that the cat had consumed contaminated beef (Vol. 1, para. 363). The Report

concluded (Vol. 1, para. 1252) that it was legitimate for the Chief Veterinary Officer to be

concerned at the time of the BSE crisis that the livestock industry not be damaged by public

reaction to a possible link between BSE and vCJD for which, in his opinion, there was no

scientific evidence. In contrast, the Chief Medical Officer’s reaction was one of deep concern

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generating and framing hypotheses and research questions, constructing and

conducting experiments, defining what constitutes adequate evidence and what

does not, and organising, interpreting, and drawing inferences from the evidence

available.55

Given that scientific knowledge is not the objective mirror of reality it is

sometimes believed to be, there is no a priori reason to automatically concede

superiority to scientific knowledge, or to blindly defer to the authority of scientists.

Where a lay member of the public does not have the ability or opportunity to

subject the ‘official’ scientific evidence or interpretation of data to personal or

trustworthy third party scrutiny, it is neither unreasonable nor irrational for him to

remain sceptical of endorsements by the scientific establishment.56

As long as scientific authority is automatically accorded deference in public

decision-making, it is a valuable tool for those with the means to access and

wield it, either because they have privileged access to the relevant data, or

because they have the political or financial means to commission preferred

areas of research or modes of study that support their claim, or to select or

influence the selection of sympathetic scientists to positions of scientific

because it highlighted a potential link between FSE and BSE, and he began to suspect a link

between BSE and vCJD (Vol. 1, para. 658).55 A case in point is the way scientists and regulators evaluated reported cases of death related

to a new drug, benoxaprofen, in forming an opinion about the hepatorenal (liver and kidney)

toxicity of the drug, described in Abraham, J., “Distributing the Benefit of the Doubt: Scientists,

Regulators, and Drug Safety” (1994) Science, Technology, and Human Values 19(4): 493.56 The scepticism is not symmetrical; surveys reveal that scientists working from the government

or industry consistently evoke a lower level of public trust than scientists working in universities

and non-governmental organisations. See for example, House of Lords Select Committee on

Science and Technology, Third Report: Science and Society, HL Paper 38 (London: HMSO,

2000) (hereinafter “Science and Society”), Appendix 6. The Committee suggested that that this

was due to public perception of government and industry scientists rather than a reflection of the

scientists themselves, partly arising from public ignorance, and partly from the failure of

institutional science at the frontier of knowledge to “admit publicly its own uncertainties and to

provide accordingly”. See HL Select Committee, Science and Society, supra, paras. 2.36, 2.56

and 2.57. The RCEP on the other hand, attributed the low-level of trust to an erosion of trust in

those who purport to regulate in the public interest. See Royal Commission on Environmental

Pollution, The Twenty-first Report: Setting Environmental Standards, supra, para. 8.23.

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authority, e.g., membership of scientific advisory committees.57 As spelt out

bluntly by Wynne and Mayer,

The current dominant forms of science in Britain … conceal substantial political

influence, often to the ultimate detriment of the environment. If those controlling budgets

have vested interests, the balance of evidence may be heavily biased against

environmental protection. For example, in Britain today, it is difficult to obtain

independent scientific opinion on nuclear issues. Many nominally independent scientists

and institutions perform research funded by the nuclear industry, and this tends to

narrow their view of uncertainty and ignorance.58

The RCEP also acknowledged this problem, albeit in more restrained terms:

Another consideration that becomes important in a situation of high uncertainty is the

overall impartiality of the procedures used for assessment. Judgements can be swayed,

perhaps imperceptibly, by one or another kind of vested interest. One much remarked

upon, and criticised, feature of regulatory science in the past has been the extent to

which experts in an industry, the contract laboratories carrying out the standard tests for

it and the regulatory body itself have functioned in some instances as a largely closed

community.59

It recommended greater transparency in the presentation of scientific

information. These presentations must make explicit the underlying scientific

basis, uncertainties in the evidence and the rationale for any methods used to

cope with variability, and the assumptions implicit in their use.

But transparency alone may not be enough; openness is also required. This

means that there is a need to open up the construction of knowledge, including

scientific knowledge, to more diverse sources. In Our Common Future, the

WCED advocated free access to relevant information and the availability of

alternative sources of technical expertise to provide an informed basis for public

57 The built-in safeguard of peer review mitigates but may not go far enough because peers are

also subject to influence one way or the other by paradigmatic and other personal and

institutional non-scientific values.58 Wynne, B., and Mayer, S., supra, p. 35.59 Royal Commission on Environmental Pollution, The Twenty-first Report: Setting

Environmental Standards, supra, para. 2.79.

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discussion.60 It was also pointed out in Agenda 21 that opening up the

construction of scientific knowledge to include women scientists,61 and

indigenous communities,62 experts from non-governmental organisations,63

businesses and industry,64 and scientists from developing countries65 allowed

these groups to contribute and scrutinise scientific knowledge beyond a closed

scientific community.

Even opening up scientific knowledge to the wider scientific community may not

be enough, though. The RCEP had suggested that while the public could

contribute to the articulation of values, scientific knowledge was best left to the

exclusive domain of scientists. It recommended a clear separation between

policy and analysis (predominantly scientific analysis) and warned against

undertaking both tasks simultaneously.66 Importantly, scientists could thereby

be prevented from surreptitiously exercising ethical judgements and non-moral

preferences qua scientists, and scientific analysis could also be protected from

political influence.

Such a recommendation is flawed because it assumes that the articulation of

values and the establishment of knowledge are separable and can proceed

independently of each other when in fact the two are inseparable. Scientists,

despite their special training, cannot remain isolated from society; it is vital that

the direction and conduct of their scientific research remain integrated with and

be accountable to values of society. Thus, Agenda 21 recommended that lay

members of the public contribute to scientific knowledge by “communicating their

sentiments to the scientific and technological community concerning how

science and technology might be better managed to affect their lives in a

beneficial way”.67 According to the Agenda, the participation of the scientific

60 World Commission on Environment and Development, supra, p. 64.61 Agenda 21, supra, para. 24.3.62 Ibid., para. 26.1.63 Ibid., para. 27.3.64 Ibid., para. 30.23.65 Ibid., para. 35.3.66 Royal Commission on Environmental Pollution, The Twenty-first Report: Setting Environmental

Standards, supra, paras. 8.51 and 8.52.67 Agenda 21, supra, para. 31.1. Emphasis mine.

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community in environmental decision-making could, inter alia, improve the

exchange of knowledge and concerns between the scientific community and the

general public and enable suitable policies and programmes to be better

formulated”.68 What was required was a dialogue between scientists and the lay

public and not simply a one-way communication from scientists to the public to

educate the latter about science. Scientists not only needed to look inward in

developing ethical principles and codes of practice, they also needed, through

continuous dialogue, to share a common value framework with society as a

whole.69 As Irwin explained, just as it was important for the public to understand

science, it was also important for scientists to understand society. Within the

framework of sustainable development, scientists needed to pursue scientific

knowledge in ways that help to achieve sustainable development as much as

society needed to organise its activities including environmental decision-making

on a more rational basis. 70 Rather than keep their distance from society,

scientists ought to integrate and work with it.

More generally, the government’s Chief Scientific Advisor has also

acknowledged the need for greater openness with its scientific advice and

recommended the consultation of a wide range of expert advice both within and

outside government, and within and outside the UK, in the use and presentation

of scientific advice in policymaking.71 This recommendation was repeated in

Guidelines 2000 issued by the Office of Science and Technology. It advised that

government departments

should draw on a sufficiently wide range of the best expert sources, both within and

outside Government. These might include not only eminent individuals, learned societies,

advisory committees, or consultants, but also professional bodies, public sector research

68 Ibid., para. 31.3(b).69 Ibid., paras. 31.9 and 39.10(b).70 Irwin, A., Citizen Science: a Study of People, Expertise and Sustainable Development

(London: Routledge, 1995), p. 5.71 Office of Science and Technology, The Use of Scientific Advice in Policy Making (May 1997),

para. 6. As at 16 April 2002, online at http://www.dti.gov.uk/ost/ostbusiness/policy.htm.

Superseded by Office of Science and Technology, Guidelines 2000: Scientific Advice and Policy

M a k i n g (July 2000). A s a t 1 6 A p r i l 2 0 0 2 , o n l i n e a t

http://www.dti.gov.uk/ost/aboutost/guidelines.htm.

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establishments, lay members of advisory groups, consumer groups and other

stakeholder bodies. As all experts will come to issues with views shaped to some extent

by their own interests and experience, departments should also consider how to avoid

unconscious bias, by ensuring that there is a good balance in terms of the type of

institutions and organisations from which the experts are sought. Experts from other

disciplines, not necessarily scientific, should also be invited to contribute, to ensure that

the evidence is subjected to a sufficiently questioning review from a wide-ranging set of

viewpoints.72

Contribution to Local and Contextual Knowledge

An open and transparent science would still only provide partial knowledge for

environmental decision-making. Knowledge can also come from other sources;

not all knowledge must be scientific in the sense that it is obtained or verifiable

using scientific processes. Even if scientists can claim mastery over abstract,

general information, their knowledge may not be as relevant as the localised lay

knowledge of the indigenous people73 or local communities74 when it comes to

location or context specific decision-making. The RCEP illustrated this point with

their case study of how the peaty, acidic soils of Cumbria did not immobilise the

radioactive caesium from the Chernobyl nuclear accident as expected. As a

result, the caesium found its way into the grass through root uptake and into the

bodies of sheep through grass consumption. Without awareness of local

conditions, scientists basing their model on the clay mineral soils of southern

England or on general statistical data would have underestimated the exposure

of lambs in Cumbria to radiation.75

Local knowledge is often anecdotal, but that should not be a reason for

invalidating it. It is not a case of one form of knowledge being superior to the

other, but of knowledge taking different forms and coming from different sources.

Scientific and local knowledge complement one another to improve predictions

about the impacts of proposed activities in a specific context. Without such local

72 Office of Science and Technology, Guidelines 2000: Scientific Advice and Policy Making, ibid.,

para. 12.73 Agenda 21, supra, para. 26.1.74 Ibid., para. 28.1.75 Royal Commission on Environmental Pollution, The Twenty-first Report: Setting Environmental

Standards, supra, para. 2.25.

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input, scientific predictions based on abstract or ‘typical’ conditions are academic

at best and may be inappropriate for environmental decision-making in a specific

context.

Local knowledge is no less perspective-driven than scientific knowledge, and

probably even more so. Just as the public is not one homogenous group,

neither is local knowledge uniform. Within a community, men and women not

only have different values, they know different things and know in different

ways.76 The same is true of the diverse local knowledge of other social

groups.77 Being able to tap on this diversity of knowledge enhances the quality

of decision-making since the different perspectives complement the one-size-fits-

all scientific or technological fixes by providing insights towards a more complete

understanding of a complex problem and its possible solutions.

In summary, knowledge from a narrow point of reference is often inadequate in

the face of complex problems or circumstances. In the same way that peer

review within the scientific community contributes to the advancement of

scientific knowledge, broad-based public participation, in which participants are

permitted to review from a wide range of reference points, each other’s factual

claims, contributes to the construction of reliable inter-subjective knowledge for

environmental decision-making.

Contribution to Evidentiary Judgements

It is inevitable that despite the best intentions and efforts, there will be gaps in

the available evidence available; all environmental decisions must ultimately rely

on imperfect knowledge. As Wynne pointed out, uncertainty (and ignorance) as

such is not a problem per se; humans had been making decisions in the face of

uncertainty and ignorance throughout their existence. Ultimately, what was

76 Agenda 21, supra, para. 24.8 specifically refers to the local knowledge of women. According

to Curtin, women’s knowledge “consists more in ‘thoughtful ways of doing’ than in ‘ways of

thinking about’”. See Curtin, D., “Women’s Knowledge as Expert Knowledge”, in Warren, K. J.,

Ecofeminism: Women, Culture, Nature (Bloomington: Indiana University Press, 1997), p. 82, at

91.77 Agenda 21, ibid., paras. 25.2, 26.1, 30.5.

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required to bridge the gap between the imperfect knowledge on the one hand,

and the decision on the other, was an exercise of evidentiary judgement. The

appropriate environmental decision to be made in the face of often contradictory,

uncertain and incomplete evidence required a judgement about the burden of

proof and the standard of proof, and the significance to be attributed to each

individual piece of evidence. Depending on what was at stake, we could

embrace, amplify, suppress or ignore the uncertainty in order to further our roles

and concerns.78

Page observed that scientific inquiry was currently systematically biased in

favour of limiting “false positives”, to the neglect of limiting “false negatives”.79

The stringent approach to establishing scientific fact required that in the face of

less than absolute certainty, scientific evidentiary judgement be suspended

pending a fresh inquiry or the acquisition of more and better data.80 Indeed,

scientists like Milne insist that

no scientist can ever do more than attempt to establish causal links by absolutely clear

scientific evidence. When we do anything else – and that includes taking action before

such limits are established – we are not behaving as scientists”.81

What is not often realised however, is that imposing the burden of proof on those

who seek to introduce new knowledge to contradict the status quo and a

standard of proof of absolute certainty is as much a value-laden approach to

proof as imposing the burden of proof on those who seek to defend the

prevailing scientific theory, or lowering the standard of proof. Whatever the

merits of such an approach for academic science, when it comes to

78 Wynne, B., “Uncertainty – Technical and Social”, in Brooks, H., and Cooper, C. L., (eds.),

Science for Public Policy (Oxford: Pergamon Press, 1987), p. 95, at 95. Adams adds that people

respond differently to the same uncertainty (and ignorance) in information because their

perceptions of danger and reward are influenced by “cultural filters”, i.e., their view of the

vulnerability of nature, and their interpretation of history. See Adams, J., Risk: The Policy

Implications of Risk Compensation and Plural Rationalities (London: UCL Press, 1995), pp. 40-1.79 Page, T., “A Generic View of Toxic Chemicals and Similar Risks” (1978) Ecology Law

Quarterly 7: 207.80 Ziman, J. M., Public Knowledge: an Essay Concerning the Social Dimension (Cambridge:

Cambridge University Press, 1968), pp. 14-5.81 Milne, A., “The Perils of Green Pessimism” (12 June 1993) New Scientist 34, 35.

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environmental decision-making, it may be necessary to anticipate or assume

environmental harm without waiting for the threat to garner enough evidence to

qualify as scientific fact.82

Beck criticised the inadequacy of “pure” scientific principles of causality, as

stemming from other contexts and perhaps from a different intellectual epoch

thus:

Where pollution exposures can only be understood and measured within international

exchange patterns and the corresponding balances, it is obviously impossible to bring

individual substances into a direct, causal connection with definite illnesses, which may

also be caused or advanced by other factors as well. This is equivalent to the attempt to

calculate the mathematical potential of a computer using just five fingers. Anyone who

insists on strict causality denies the reality of connections nonetheless. Just because the

scientists cannot identify any individual causes for individual damage, the pollutant levels

in the air and in foodstuffs do not decrease, the swelling of the air passages under

exposure to smog does not go down and neither do the mortality rates, which rise

significantly with sulfur dioxide levels above 300 micrograms per cubic meter.83

One way to understand knowledge is to liken it to a tool as opposed to an

objective fact waiting to be discovered.84 Like the design of a tool, the

acquisition of knowledge is shaped by some intended function or motivating

interest. Its applicability to new functions or when new interests emerge is

therefore an open question. If the scientific standard of proof is not derived from

some incontrovertible scientific method, but is simply a matter of convention

within the relevant scientific community for its own purpose of establishing

82 This is likely to do with the fact that in its purest form, science adopts a falsification approach

as opposed to a verification approach to discovery. The former is really concerned with

identifying and weeding out false hypotheses rather than with proving any particular hypothesis

to be correct. Other limitations to a scientific approach to environmental decision-making include

the compartmentalised approach of science to problem solving when in fact environmental

systems are complex phenomena with many factors operating in complicated multi-faceted

interrelationships; and the emphasis of science on universal principles as opposed to particular

context-specific situations. See Trudgill, S., Barriers to a Better Environment: What Stops Us

Solving Environmental Problems? (London: Belhaven Press, 1990), pp. 55-61.83 Beck, U., supra, p. 63.84 Ravetz, J. R., Uncertainty, Ignorance and Policy”, in Brooks, H., and Cooper, C. L., (eds.),

Science for Public Policy (Oxford: Pergamon Press, 1987), p. 77, at 85.

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knowledge academically, the standard of proof adopted by academic scientists

does not ipso facto have to be the applicable standard of proof for the purpose of

environmental decision-making. Instead, what the appropriate standard of proof

ought to be will, inter alia, necessarily depend on what the knowledge is to be

used for. In the context of environmental decision-making, an appropriate

standard to adopt may be the ‘reasonable man standard’:

The degree of risk to human health does not need to be at statistically significant levels to

require political action. The degree of risk does have to be such that a reasonable person

would avoid it. Consequently, the important political test is not the findings of

epidemiologists on the probability of nonrandomness of an incidence of illness but the

likelihood that a reasonable person, including members of the community of calculation

[epidemiologists], would take up residence with the community at risk and drink from and

bathe in water from the Yellow Creek area or buy a house along Love Canal.85

Of course, what a “reasonable man” would do in particular circumstances is a

value-laden question that no single person (aside from judges and lawyers) can

claim to know impartially.

Evidentiary judgements consistent with sustainable development observe the

precautionary principle.86 The principle has been described as non-scientific,

and even worse, “bad science” and “antithesis of the scientific attitude and

normal scientific discourse”.87 Indeed, the principle exists precisely to counteract

the systematic neglect of science in limiting false negatives. By advocating a

lower standard of proof than absolute certainty for proof of serious or irreversible

environmental harm, it makes the case for environmental protection in

circumstances of scientific uncertainty easier to establish:

85 Couto, R. A., “Failing Health and New Prescriptions: Community-Based approaches to

Environmental Risk”, in Hill, C. E., (ed.), Current Health Policy Issues and Alternatives: an

Applied Social Science Perspective (Athens: University pf Georgia Press, 1985), p. 53, cited in

Brown, P., “Popular Epidemiology and Toxic Waste Contamination: Lay and Professional Ways

of Knowing” (1992) Journal of Health and Social Behavior 33(3): 267, 274.86 In contrast, a “presumption principle for liberty” – that the burden of proof of harm or damage is

on those who want to curtail liberty – could be detrimental to sustainable development. See

O’Neil, Ecology, Policy and Politics (London: Routledge, 1993) p. 147.87 Milne, A., supra, pp. 36-7.

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Where there are threats of serious or irreversible harm to the environment, lack of full

scientific certainty shall not be used as a reason for postponing cost-effective measures to

prevent environmental degradation.88

The principle does not prescribe the requisite standard of proof of serious or

irreversible environmental harm for the purpose of taking precautionary action; it

is more of a qualitative principle than a mathematical formula to be applied with

precision.89 The principle has been unfairly criticised for being too “uselessly

vague”,90 but its true utility lies in its prescribing a space for the deliberate

exercise of evidentiary judgement. As pointed by Holder and Elworthy, the

principle provided this space by offering a vocabulary with which to legitimately

express concerns about irreversible and serious threats that the vocabulary of a

scientific discourse lacked.91

Conclusion

The root cause of unsustainable development is the disparity in economic and

political power in environmental decision-making. Any serious attempt to attain

distributive justice in the sharing of access to natural resources must therefore

first address the issue of procedural injustice in environmental decision-making.

If environmental decisions are to realise their full potential for contributing to

sustainable development, they cannot be entrusted to the exclusive monological

ethical and evidentiary judgements of administrators or the political leadership,

particular if they have a vested interest in maintaining the worsening inequitable

distribution of access to natural resources. Instead, impartial ethical and

evidentiary judgements are more likely to emerge from “debate, discussion and

challenge” by the people who are affected or interested in a proposed

environmental decision.92

88 Rio Declaration, supra, Principle 15.89 House of Commons Select Committee on Science and Technology Fourth Report, HC 257

(London: HMSO, 2001), para. 48.90 Milne, A., supra, p. 36.91 Holder, J., and Elworthy, S., “The BSE Crisis: a Study of the Precautionary Principle and the

Politics of Science in Law”, in Reece, H., (ed.), Law and Science (Oxford: Oxford University

Press, 1998), p. 129, at 150.92 Royal Commission on Environmental Pollution, Twenty-First Report: Setting Environmental

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There are also serious deficiencies in the way knowledge is established in

complex environmental decision-making in that there is almost a blind faith in the

authority of experts. The fact that expert opinion is as much the product of

subjective judgement as it is of professional judgement means that the quality of

expert knowledge can be enhanced with greater transparency and openness in

its use. In addition, general abstract knowledge must be complemented with

localised contextual knowledge to give a more complete and balanced picture of

the ‘objective’ world. Broad-based discursive public participation can contribute

in both respects by subjecting expert knowledge to scrutiny from a diversity of

perspectives, and providing the much-needed localised and contextual

perspective.

A panacea for all our environmental ills it is not, but discursive public

participation in environmental decision-making may be the best procedural

means of ensuring equitable environmental decisions based on impartial values

and reliable knowledge. To the extent it is present, there can be greater

confidence that the outcome of the decision represents progress towards

sustainable development.

Standards, supra, para. 7.3.

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PART TWO :: ASSESSING PUBLIC PARTICIPATION IN THE

AUTHORISATION OF RADIOACTIVE WASTE DISPOSAL

In Part One, I concluded that environmental decisions are made with the

anthropocentric objective of contributing to sustainable development, and that at

the core of the concept as articulated by the WCED and in the Rio Declaration

are the principles of intra-generational and intergenerational equity. I also

concluded that discursive public participation in environmental decision-making

contributes to better substantive outcomes by facilitating impartial value

judgements, and inter-subjective social construction of multi-perspective

knowledge on which to base the decision. In this Part, I adopt and modify

criteria proposed by Webler,1 and use them for evaluating the law and

Environment Agency practice relating to public participation in the authorisation

of radioactive waste disposal. By so doing, I hope to highlight deficiencies in the

law and Agency practice in this regard, and propose a direction for reform.

1 Webler, T., supra, p. 35.

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Chapter 5: Sustainable Development and the Regulation of

Radioactive Waste Disposal in England

I begin this chapter with an examination of the transposition of sustainable

development into domestic environmental law and policy in the UK. I suggest

that while formally endorsing the concept of sustainable development, and

acknowledging the need for greater intra-generational and inter-generational

justice in environmental decision-making, UK environmental policy starts from

the flawed premise that there is no need to distinguish between basic needs and

aspirations, legitimate or otherwise. Thus, all consumer demand is equally

legitimate and rising consumer demand must somehow be accommodated by

increasing the efficiency of economic production and consumption without

degrading the environment in a way that makes further economic growth difficult

or impossible to sustain. Under such a liberal conception of sustainable

development, only the means but not the ends of economic activity needs to be

publicly examined. Understanding how sustainable development is transposed

into UK domestic environmental policy is fundamental to understanding

environmental decision-making by the Environment Agency relating to its

authorisation of radioactive waste disposal, and sets the policy context for the

case studies in Chapters 7 and 8, where I evaluate fairness and competence of

the law and Agency practice relating to public participation in the authorisation of

radioactive waste disposal.

Transposing Sustainable Development into a National Strategy

The Rio Declaration makes it clear that although states are entitled to “exploit

their own resources pursuant to their own environmental and developmental

policies”,1 they have a collective responsibility to pursue sustainable

development as a global solution to a global problem. International coordination

and cooperation is needed to eradicate poverty and decrease the disparity in

standards of living around the world2 while preserving the ability of future

generations to meet their needs.

1 Principle 2.2 Principle 5.

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States also have an individual responsibility to contribute to sustainable

development by ensuring that their resources are deployed in a way that

“equitably meets the needs of present and future generations within their

jurisdiction.3 They must also ensure that activities within their jurisdiction or

control do not cause damage to the environment of other states or of areas

outside their jurisdiction.4 Domestically, they have a responsibility to eradicate

poverty within their jurisdiction5 and enact effective environmental legislation and

laws regarding liability and compensation for victims of environmental damage.6

Environmental policies must also include the adoption of operational principles

such as the precautionary approach7 and the polluter pays principle;8 and

instruments such as the environmental impact assessment.9

Importantly, states have a common but differentiated responsibility to contribute

to sustainable development. In the case of a developed country such as the UK,

it has a special responsibility to contribute to global sustainable development in

view of its superior technological and financial resources and because of the

disproportionate pressure it places on the global environment.10

Sustainable Development in the United Kingdom

The present development path of the UK is by all counts unsustainable. In 1999,

the country consumed about 3 times more biomass than its own biological

productive capacity.11 It had an average per capita consumption about 2.8 times

the level of per capita consumption that is sustainable globally.12 Despite the

disproportionate size of the UK’s ecological footprint, there are some 5 million

people or 17% of its population who consider themselves to be living in absolute

3 Principle 3.4 Principle 2.5 Principle 5.6 Principle 13.7 Principle 15.8 Principle 16.9 Principle 17.10 Principle 7.11 Data from World Wide Fund for Nature, supra, pp. 29 and 30.12 Ibid., pp. 4 and 29.

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poverty, i.e., deprived of basic needs, and about a quarter of the population living

are unable to afford three or more items or activities considered by the majority

of the UK population to be necessities.13 To achieve sustainable development,

the UK would need to do more to eliminate poverty but at the same time reduce

its gross overconsumption of natural resources.

That sustainable development has formally been adopted as the framework for

environmental decision-making in the UK is not in doubt. The concept forms the

cornerstone of European Union environmental law and policy. This invariably

has a strong influence in the formulation of environmental law and policy in the

UK. Independently of its membership in the EU, the UK has also adopted

sustainable development as a national strategy and also provided for it in its

legislation.

The EU Influence

As a member state of the EU, there is little doubt that the UK’s environmental

law and policy are strongly influenced by developments in the Community.

While the objectives and principles of the EC Treaty and EU Treaty cannot be

applied directly as a benchmark for reviewing national legislation,14 their indirect

effect can be felt via the environmental directives and regulations that emanate

from the EC. Pursuant to EC Directives, the UK has had to pass new domestic

environmental legislation that contribute to EC objectives and meet EC

environmental standards.15 As Lowe and Ward pointed out however, it is

13 Gordon, D., et al, Poverty and Social Exclusion in Britain (York: Joseph Rowntree Foundation,

2000). As at 20 November 2002, the findings are reported online by the Foundation at their

website, http://www.jrf.org.uk/knowledge/findings/socialpolicy/930.asp.14 R. v. Secretary of State for Trade and Industry, ex p. Duddridge [1995] Env LR 151; [1996] Env

LR 325. Hereinafter “Duddridge case”.15 In Chapter 2, I referred to the Wildlife and Countryside Act 1981 and the Conservation (Natural

Habitats etc.) Regulations 1994 which were issued pursuant to the Birds Directive, supra; and

the Habitats Directive, supra, respectively. Other examples include the Town and Country

Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1199) and the

Environmental Information Regulations 1992 (SI 1992/3240) issued pursuant to EC Directive of

27 June 1985 on the assessment of the effects of certain public and private projects on the

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impossible to evaluate with confidence, the level of impact the EC has had on

the character of British environmental policy because one can only speculate

what might have happened had the UK remained outside the EC.16 Generally

however, the consensus is that the EC has been a positive influence insofar as

the pursuit of sustainable development in the UK is concerned. In the 1970s and

1980s, when the concept of sustainable development was just emerging, the UK

generally lagged behind its European counterparts in environmental standards

and had a reputation for being the “dirty man of Europe”. It is therefore

reasonable to surmise that but for the relentless push from the EU in terms of

environmental standard setting and enforcement, sustainable development

would probably not have taken root in UK environmental policy as fast and as far

as it has.

The original aims of the European Economic Community in 1957 were

economic, and so it was not surprising that environmental protection did not

feature in the original Treaty Establishing the European Economic Community,

now known as the Treaty Establishing the European Community.17 The absence

of any explicit legal competence for the EC to be involved in environmental

matters did not stop the Community from introducing an environmental policy

and environmental legislation. The First Environmental Action Programme18 on

the environment was adopted 1973. Article 235 of the EC Treaty allowed the

Community to take appropriate measures necessary for the attainment of one of

its objectives for which the Treaty did not explicitly provide the necessary

power.19 The Community also relied on Article 100 of the Treaty20 as a source

of legal competence in the environmental sphere. This article empowered the

environment, (85/337/EEC) [1985] OJ L175/40; and EC Directive of 7 June 1980 on the freedom

of access to information on the environment (90/313/EEC) [1990] OJ L158/56 respectively.16 Lowe, P., and Ward, S., “Britain and Europe: Themes and Issues in National Environmental

Policy” in Lowe, P., and Ward, S., (eds.), British Environmental Policy and Europe: Politics and

Policy in Transition, (London: Routledge, 1998), p. 3, at 28.17 Hereinafter “EC Treaty”.18 [1973] OJ C112/1.19 One measure taken under the Article was the Birds Directive, supra.20 Now Article 94 of the Consolidated Version of the EC Treaty, supra.

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Community to issue Directives for the approximation of laws of member states

that affected the establishment or functioning of the common market.21

The Single European Act 198722 established explicit legal competence in

environmental protection for the EC with the addition of an environmental

dimension to the Community’s responsibilities under Articles 130r to Article 130t

in Title VII.23 Sustainable development had not yet become a current concept at

that time, but some of its principles had begun to find their way into Community

environmental policy. Article 130r, for example, introduced the preventive

principle and the integration of environmental protection in all areas of policy.

The Treaty on European Union24, signed in Maastricht in 1992, further elevated

the importance of environmental protection within the EC. This was the year of

the Earth Summit, and the year when sustainable development became the

byword of every environmental policy maker and mainstream environmentalist.

Although prepared and finalised before the Earth Summit, the Community was

clearly influenced by developments leading to the Summit. A new Article 2 was

introduced into the EC Treaty, setting out one of the Community’s new general

objectives as the promotion throughout the Community of “a harmonious and

balanced development of economic activities, sustainable and non-inflationary

growth respecting the environment…”.25 Another new Article 3(k) provided

competence for the Community to have an environmental policy. Article 130r

was strengthened under the new Title XVI. Article 130r(2) emphasised that

environmental policy was to aim at a high level of environmental protection, and

environmental principles such as the precautionary principle and the polluter-

pays principle were also introduced into the EC Treaty. But sustainable

development was still some way from being accepted in the Community.

According to Haigh, the adoption of “sustainable and non-inflationary growth” as

an objective was a reconciliation of two concepts: sustainable development and

21 The adequacy of Article 100 as the basis for the issue of directives for environmental

protection was confirmed by the European Court of Justice in Case 92/79 Commission of the

European Communities v. Italy [1980] ECR 1115.22 [1987] OJ L169/1.23 Now Arts. 174-176 in Title XIX of the Consolidated Version of the EC Treaty, supra.24 [1992] OJ C191/1. Hereinafter “EU Treaty”.25 Emphasis mine.

119

sustained non-inflationary growth.26 Baker doubted that the use of “sustainable

growth” rather than “sustainable development” was accidental because the

Treaty was the outcome of complex, protracted and politically sensitive

bargaining among member states, and attempts to change the former to the

latter since the first draft of the Treaty had been unsuccessful.27 “Sustainable

growth” has been criticised as being a contradiction in terms – “nothing physical

can grow indefinitely”.28 On the other hand, as pointed out by the WCED,

continued growth per se, even in the developed countries was not inimical to

sustainable development; it was the nature of the growth that matterd.29 Growth,

understood in qualitative rather than physical quantitative terms, was not

necessarily bounded.

The Fifth Environmental Action Programme: Towards Sustainability – a

European Community Programme of Policy and Action in Relation to the

Environment and Sustainable Development30 that ensued in 1992 set out EC

environmental strategy for the period 1993 to 2000, and explicitly committed the

Community to the achievement of sustainable development. Developed in

parallel with the run-up to the Earth Summit, it shared most of the strategic

objectives and principles of the Rio agreements. The Commission of the

European Community31 described sustainable development as the “continued

economic and social development without detriment to the environment and the

natural resources on which continued human activity and further development

depend”. It agreed that sustainable development entailed

26 Haigh, N., “Introducing the Concept of Sustainable Development into the Treaties of the

European Union” in O’Riordan, T., and Voisey, H., (eds.), The Transition to Sustainability: The

Politics of Agenda 21 in Europe (London: Earthscan Publications, 1998), p. 70.27 Baker, S., “The Evolution of European Union Environmental Policy”, in Baker, S., et al, (eds.),

The Politics of Sustainable Development: Theory, Policy and Practice within the European Union

(London: Routledge, 1998), p. 91, at 92-3.28 World Conservation Union, United Nations Environmental Programme, and World Wildlife

Fund for Nature, Caring for the Earth: a Strategy for Sustainable Living (Gland, Switzerland:

IUCN, UNEP, & WWF, 1991), supra, p. 10.29 World Commission on Environment and Development, supra, p. 44. See also Commoner, B.,

supra, pp. 141-2 for arguments to the same effect.30 Commission of the European Community, Luxembourg: Office for Official Publications of the

European Communities, 1993. [1993] OJ C138/1. Hereinafter “5th EAP”.31 Hereinafter “CEC”.

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preserving the overall balance and value of the natural capital stock, redefinition of short,

medium and long term cost/benefit evaluation criteria and instruments to reflect the real

socio-economic effects and values of consumption and conservation, and the equitable

distribution and use of resources between nations and regions over the world as a

whole.32

The 5th EAP aimed to promote “policies and programmes that will improve the

quality of human life worldwide through a more equitable distribution of natural

resources.”33 To achieve this, the programme sought to transform “patterns of

growth in the Community in such a way as to reach a sustainable development

path”. Inter alia, this implied that

the behavioural trends of citizens within the Community should reflect an appreciation that

natural resources are finite and that one individual’s consumption or use of these

resources must not be at the expense of another’s; and that neither should one

generation’s consumption be at the expense of those following.34

The Treaty of Amsterdam Amending the Treaty on European Union, the Treaties

Establishing the European Communities and Certain Related Acts 199735 gave

further prominence to sustainable development.36 The Treaty made further

changes to the EC Treaty and EU Treaty to reflect the increasing importance of

sustainable development for environmental as well as other policies. While the

objective of “sustainable growth” has not been abandoned, a new recital was

introduced into the EU Treaty to emphasise that economic and social progress

must take into account “the principle of sustainable development … within the

context of the environmental protection”.37 The objectives of the EU as set out in

the new Article B of the EU Treaty now include the “promotion of economic and

social progress and a high level of employment and to achieve balanced and

32 Commission of the European Communities, Towards Sustainability, supra, p. 48.33 Ibid., p. 47.34 Ibid., p. 55.35 [1997] OJ C340/1. Hereinafter “Amsterdam Treaty”.36 Bär, S., and Kraemer, R. A., “European Environmental Policy after Amsterdam” (1998) Journal

of Environmental Law 10(2) 315, 330.37 Amsterdam Treaty, Art. 1(2).

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sustainable development…”.38 A new Article 2 in the EC Treaty also includes as

the Community’s general objectives, the promotion of

a harmonious, balanced and sustainable development of economic activities, a high level

of employment and social protection, sustainable and non-inflationary growth … a high

level of environmental protection and improvement of the quality of the environment …

among Member States.39

The Sixth Environmental Action Programme: Environment 2010 - Our Future,

Our Choice40 succeeds the 5th EAP. It lays down the EC’s environmental action

programme for this decade. The Programme emphasises the prudent use of the

world’s natural resources and the protection of the global eco-system as one

dimension of sustainable development, the other dimensions being economic

prosperity and a balanced social development.41 Recognising that sustainable

development is concerned with “our long-term welfare here in Europe and at the

global level and with the heritage we leave to our children and grandchildren”,42

and that “the average person in the western world consumes up to 50 times

more resources in a lifetime than the average person in a developing country,

the programme is concerned with finding better and different ways of meeting

the demand for resources arising from a growing world population and continued

economic growth in the industrialised countries”.43

The 6th EAP reaffirms the relevance to Community environmental policies of the

precautionary principle, and the principles that pollution should be rectified at

source, that the polluter should pay and that priority should be given to

preventative action.44 Building on the 5th EAP, the programme proposes to

continue to improve the implementation of existing legislation and the integration

38 Ibid., Art. 1(5).39 Ibid., Art. 2(2). Emphasis mine.40 Commission of the European Communities, Brussels, 24.1.2001, COM(2001)31 final.

Hereinafter “6th EAP”.41 Ibid., p. 11.42 Ibid., loc. cit..43 Ibid., p. 9. Emphasis mine.44 Ibid., p. 65.

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of environmental concerns into other areas of policy.45 Of particular interest for

present purposes is the identification of the empowerment of people as private

citizens as one priority area for strategic action.46 In this regard, the Programme

noted that revisions to Community legislation and procedures are underway to

improve transparency, access to environmental information, and public

participation as part of its commitments under the Aarhus Convention. The full

implementation of the directive on environmental impact assessment and the

proposed strategic environmental assessment are also expected to give citizens

more influence in decisions on planning, projects and policies.47

There is no doubt that EC environmental policy is underpinned by the

achievement of sustainable development. This, according to the Community’s

strategy for sustainable development, requires that “economic growth supports

social progress and respects the environment, that social policy underpins

economic performance, and that environmental policy is cost-effective”.48 It is

clear where the Community’s priorities ultimately lie. Economic growth and

social progress must be sustained; while the environment is to be “respected”,

but only so that economic growth and social progress may continue.

The National Sustainable Development Strategies

This Common Inheritance

Britain has the oldest system of environmental protection in an industrialised

society. Dating back as early as 1863, the Alkali Inspectorate was originally

established to regulate acidic emissions from the chemical industry. Yet, until

the publication of This Common Inheritance,49 the UK’s approach to

45 Ibid., p. 10.46 Ibid., pp. 20-1.47 Ibid., loc. cit..48 Commission of the European Communities, Communication from the Commission: a

Sustainable Europe for a Better World: a European Union Strategy for Sustainable Development,

Brussels, 15.5.2001, COM(2001)264 final, p. 2.49 Department of the Environment, This Common Inheritance: Britain’s Environmental Strategy

(Cm 1200) (London: HMSO, 1990).

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environmental protection was simply a hotchpotch of common law, legislation,

and policies without any coherent underlying strategy.50 The one common

thread that consistently ran though its environmental measures was pragmatism

– a compromise of what could be achieved having regard to the local conditions

and circumstances, the current state of scientific and medical knowledge, the

financial implications, and the goodwill of industry.51

Aside from being the first comprehensive statement of British environment

policy, This Common Inheritance was the first sign of governmental acceptance

of sustainable development as a framework for policymaking.52 Sustainable

development was understood then to mean “living on the earth’s income rather

than eroding its capital … keeping consumption of renewable natural resources

within the limits of their replenishment … handing down to successive

generations not only man-made wealth … but also natural wealth”.53 The

government accepted the “ethical imperative of stewardship”, and mankind’s role

as “custodians of our planet”.54 Issues of intra-generational justice did not

feature at this stage.

According to This Common Inheritance, economic growth had to continue; it

provided the means to live better and fuller lives, and the resources for cleaning

up the environment and to produce cleaner technology.55 The government

accepted as a given that as Britain grew richer, there would be a greater demand

for material needs to be met along with an increasing demand for protection of

50 Lowe, P., and Flynn, A., “Environmental Politics and Policy in the 1980s” in Mohan, J., (ed.),

The Political Geography of Contemporary Britain (London: Macmillan, 1989), p. 255, at 256.51 Jordan, A., “The Impact on United Kingdom Environmental Administration” in Lowe, P., and

Ward, S., (eds.), British Environmental Policy and Europe: Politics and Policy in Transition,

supra, p. 173, at 181.52 Carter, N., and Lowe, P., “Britain: Coming to Terms with Sustainable Development?” in Hanf,

K., and Jansen, A., (eds.), Governance and Environment in Western Europe: Politics, Policy and

Administration (Harlow: Longman, 1998), p. 17, at 32.53 See UK Government, This Common Inheritance: Britain’s Environmental Strategy, supra, para.

4.4.54 Ibid., para 1.14.55 Ibid., para. 1.5.

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the natural environment and a better quality of life.56 Despite the fact that the UK

was already a major consumer of the world’s resources, the proposed solution

focussed on resource productivity without examining critically whether the

underlying demand was the real problem.57 In the final analysis, the message

sent out by This Common Inheritance was that environmental protection was

something to be pursued as long as this did not undermine economic growth.58

Following the Earth Summit, the UK was one of the first countries in the world to

prepare a national sustainable development strategy, published in 1994.

Building on This Common Inheritance and reflecting the main themes of the Fifth

EAP, Sustainable Development: the United Kingdom Strategy,59 affirmed the

importance of sustainable development and its principles.60 Its approach to

sustainable development, as in This Common Inheritance, was overwhelmingly

economic in approach, and focussed on fitting environmental concerns within

existing policies on economic development; issues of social justice did not

feature in the strategy.61 On international justice, the strategy noted that the UK

operated in a complex international framework in which individual states pursued

their own national interests individually or collectively.62 The strategy suggested

that the main way the UK could contribute to the economic development of

developing countries was by buying their products.63 The strategy did not

address the question of whether, given that the average Briton already

consumed more than his proportionate share of natural resources, there was a

more sustainable way of eliminating poverty. As for future generations, the

strategy acknowledged that the key issue for sustainability was how to consider

56 Ibid., para. 2.3.57 Ibid., para.2.4.58 Ibid., para. 2.6.59 Department of the Environment, Sustainable Development: The United Kingdom Strategy (Cm

2426) (London: HMSO, 1994).60 Ibid., Ch. 3.61 Connelly and Smith attributed this lack of “real” discussion of the notion of social justice implicit

in sustainable development and the redistribution of resources that followed from it to the

“political sensitivity to questions of resource distribution”. See Connelly, J., and Smith, G.,

Politics and the Environment: From Theory to Practice (London: Routledge, 1999), p. 269.62 Department of the Environment, Sustainable Development: The United Kingdom Strategy,

supra, para. 28.3.63 Ibid., para. 28.23.

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the interests of future generations and how these interests should be weighed in

relation to present needs. This involved individual value judgements and

consideration through political processes.64

Sustainable development under the conservative government was a matter of

reconciling a society’s twin aspirations of achieving economic development to

secure rising standards while protecting and enhancing the environment.65 In

this reconciliation, economic growth was a non-negotiable rimperative for the

improvement of the quality of life;66 the then Secretary of State for the

Environment, John Gummer, insisted at the outset that a society that did not

grow was one that could not satisfy some of their basic needs.67 To the

government, sustainable development seemed synonymous with sustainable

economic development. To them, the challenge was to promote environmental

friendly economic activity and to discourage environmentally damaging ones.68

This it would do by integrating environmental costs into decision-making at all

levels69 and relying on the polluter pays principle.70

While the need for intergenerational justice was acknowledged, intra-

generational justice issues were only implicitly addressed. Without targets,

deadlines, firm commitments and new initiatives, the White Paper was important

not so much for what it had to offer, but what it stood for.71 That it had even

been produced gave hope that steps would eventually be taken in the right

direction.

A Better Quality of Life

64 Ibid., para. 29.11.65 Department of the Environment, Sustainable Development: The United Kingdom Strategy,

supra, para. 3.1.66 Ibid., para. 3.3.67 Ibid., p. 5.68 Ibid., para. 3.5.69 Ibid., para. 29.1.70 Ibid., para. 3.16.71 Voisey, H., and O’Riordan, T., “Governing Institutions for Sustainable Development: The

United Kingdom’s National Level Approach” (1997) Environmental Politics 6(1): 24, 28.

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Following some years of inactivity in the environmental policy field after coming

into power in 1997, the Labour Government published its own national strategy

on sustainable development in 1999. A Better Quality of Life: a Strategy for

Sustainable Development for the United Kingdom 72 represents a significant shift

in the understanding of sustainable development in the UK. It accepted that

intra-generational equity, including international and intra-national equity, were

important components of sustainable development. According to the strategy,

the elements of sustainable development are “social progress which recognises

the needs of everyone without treating others, including future generations and

people elsewhere in the world, unfairly; … effective protection of the

environment; prudent use of natural resources; and maintenance of high and

stable levels of economic growth and employment”.73 Its strategies for “social

progress” include the elimination of poverty and social exclusion,74 inter alia,

through a better understanding of the impacts of government policies on different

groups in society, particularly women, ethnic minorities, and the disabled,

greater access to environmental information, and new modes for public

participation.

Where the strategy falls short is in respect of its dogmatic obsession with

economic growth; it insists that meeting basic needs requires the maintenance of

“high and stable levels of economic growth and employment”:

abandoning economic growth is not a sustainable development option: to do so would

close off opportunities to improve quality of life through better healthcare, education, and

housing; to combat social exclusion; to revitalise our cities, towns and rural areas; and to

protect and enhance our environment.75

Economic growth and employment are to be maintained through the “production

of high quality goods and services that customers throughout the world want,

and at prices they are prepared to pay”. In a country already depleting a

72 Department of the Environment, Transport and the Regions, (Cm 4345) (London: TSO, 1999).

Hereinafter “A Better Quality of Life”.73 Ibid., Ch. 1.74 Ibid., Chs. 7 and 9.75 Ibid., para. 3.12.

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disproportionate share of the world’s natural resources, continued economic

growth would rely on technological innovation and greater resource efficiency.76

As I explained earlier in Chapter 3 however, relying on technological innovation

and greater resource efficiency alone may not be enough. The strategy itself

noted that

just to keep the United Kingdom's resource use at today's levels would require resource

efficiency to improve at a rate which matches the growth in the economy. But that rate of

change will not be enough to reduce global environmental pressures which are already

severe, in particular since increases in global consumption will be necessary to eradicate

extreme poverty.77

Furthermore, without examining the legitimacy of the needs or aspirations to be

met, and without reducing the total level of resource use, merely improving the

means of production is futile because aspirational needs are insatiable.

Unsustainable development will be the result if more and more resources

continue to be diverted to the satisfaction of the aspirational needs of customers

throughout the world who can afford to pay.

The Environment Agency’s Contribution to Sustainable

Development

A significant step towards the realisation of sustainable development was taken

when the concept was put on a legal footing. The Environment Agency was

created under the Environment Act 1995,78 inter alia, to carry out the functions of

the National Rivers Authority, waste regulation authorities, and Her Majesty’s

Inspectorate of Pollution.79 For the first time, an agency was given a statutory

aim to contribute to sustainable development. Section 4(1) of the Act provides

that the “principal aim” of the Agency in discharging its environmental protection

and enhancement functions is to make the contribution to sustainable

development pursuant to ministerial guidance issued under s. 4(2) of the Act.80

76 Ibid., Ch. 6.77 Ibid., para. 6.7.78 Hereinafter “1995 Act”.79 ss. 1 and 2. Hereinafter “HMIP”.80 Section 4(3) describes the achievement of sustainable development as an objective rather

128

Sustainable development is not defined in the Act itself, understandably so given

the difficulty of condensing the concept into a precise essence capable of judicial

application, but the then Secretary of State for the Environment, in line with the

prevailing pro-economic growth sustainable development strategy described the

concept thus:

Balance is at the heart of sustainable development … We need to grow, if we are to be

able to provide the resources our people need, but at the same time we need to grow in a

sustainable way … That means reconciling the needs of the environment and of economic

development, rather than pursuing one at the cost of the other.81

Statutory ministerial guidance on the Agency’s contribution to the achievement of

sustainable development was issued in November 1996.82 According to the

guidance, the Agency’s contribution to sustainable development includes the

adoption of a holistic approach to environmental protection and enhancement by

optimising benefits to the environment as a whole, taking into account all likely

costs and benefits; the adoption of a long term perspective, including issues of

intergenerational equity; and the contribution to the protection of the global

atmosphere by having regard to the government’s international commitments.83

The Agency is also required to take in aspects of an intra-generational equity of

sorts: where appropriate to do so, it must consider the distribution of costs and

benefits “across the economy”.84

As noted earlier, A Better Quality of Life has since elevated the importance of

social justice as a component of sustainable development. It is no longer

enough to be concerned about the uneven distribution of costs and benefits

arising from environmental decisions; positive action must also be taken to

than an aim. The significance of this distinction is not clear.81 Hansard, HC, 18 April 1995, Vol. 258, cols. 37-8.82 Department of the Environment, The Environment Agency and Sustainable Development,

Incorporating: Part I – Statutory Guidance to the Environment Agency made under Section 4 of

the Environment Act 1995; and Part II – Explanatory Document Accompanying the Statutory

Guidance, B9709 November 1996, 96EP189/1 (London: HMSO, 1996). Hereinafter “The

Environment Agency and Sustainable Development”.83 Ibid., pp. 3 and 4.84 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part II, para. 5.6(vi)(d).

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eliminate poverty and socially exclusion. Although the Agency remains legally

bound by the existing ministerial guidelines, the current strategy has influenced

the Agency’s approach to sustainable development even before the government

issues its own ministerial guidelines on sustainable development to the Agency

to formally signal the shift.

In contrast to the explicit requirement in the ministerial guidance to consider

issues of intergenerational equity, reference to intra-generational equity is more

oblique. Thus, in its early years, the Agency considered its role in sustainable

development as one of balancing the demands on the environment placed by

present human needs with environmental protection,85 without reference to any

responsibility for social equity. Given the greater emphasis on social justice in A

Better Quality of Life, more consideration is being given by the Agency to issues

of intra-national equity in the form of combating social exclusion; the Agency

recently described sustainable development as “a balance of environmental

protection, social equity, and wealth creation”.86 At its Annual General Meeting

in September 2000, the Agency also hosted a panel discussion on the topic of

achieving environmental equality. At the discussion, the Chairman of the

Agency commented on the considerable scope for the Agency to tackle

environmental inequalities.87 More recently, the Agency noted the need to be

more aware of social issues raised by its work in protecting and improving the

environment, such as the needs of people in poverty who live in the most

polluted neighbourhoods.88 These developments signal a shift towards a greater

awareness by the Agency of the social dimensions of its contribution to

sustainable development.

Reflecting the policy context within which it operates, the Environment Agency’s

contribution to sustainable development maintains the emphasis on economic

85 See for example, the Agency’s foreword in An Environmental Strategy for the Millennium and

Beyond (Bristol: Environment Agency, 1997), pp. 5 and 13.86 Environment Agency, Creating an Environmental Vision: Progressing the Environment

Agency’s Contribution to Sustainable Development By Way of a Better Environment in England

and Wales, (Bristol: Environment Agency, 2000), para. 2.1.87 Environment Agency, (November 2000) Environment Action 27: 10.88 Environment Agency, An Environmental Vision: The Agency’s Contribution to Sustainable

Development, supra, p. 10.

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development. Thus, the Agency’s contribution to sustainable development must

still

reconcile the needs of the environment and those of development by regulated

organisations … where possible … in partnership with these regulated organisations in

ways which maximise the scope for cost-effective investment in … [improved] technologies

and [management] techniques seeking to take advantage of companies’ planned

investment cycle.89

In line with A Better Quality of Life, the draft statutory guidance to the Agency

also considers that the Agency’s role in contributing to sustainable development

is, inter alia, to “protect and enhance the environment in a way that takes

account (so far as is consistent with its legal obligations) of economic and social

considerations”.90 The Agency has affirmed the economic dimension of its

contribution to sustainable development, noting that its role as “champion for

sustainable development” is to “protect and enhance the environment in a way

that links with measures to promote social fairness and a prosperous, efficient

economy”.91

Costs and Benefits

In line with the economic dimension of the Environment Agency’s contribution to

sustainable development, the Agency is required to take account of the likely

costs to any persons or to the environment of making such a contribution.92 This

is a new statutory duty not imposed on the Agency’s predecessors in the

discharge of their functions. Similarly, s. 39 of the 1995 Act requires the Agency

to take into account the likely costs and benefits in deciding whether to exercise

a power and the manner of its exercise, “unless and to the extent that it is

89 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part II, para. 4.3(v).90 Department for Environment, Food and Rural Affairs, The Environment Agency’s Objectives

and Contribution to Sustainable Development: Statutory Guidance – Consultation Document

(London: HMSO, 2002), para. 5.2.91 Environment Agency, An Environmental Vision: The Environment Agency’s Contribution to

Sustainable Development, supra, p. 18. Emphasis mine.92 1995 Act, ss. 4 and 56.

131

unreasonable for it to do so in view of the nature and purpose of the power”. No

duty to take account of costs and benefits arises in respect of the Agency’s

duties or its pursuit of any objectives imposed upon or given to it.

Although the Environment Agency is apparently not required by statute to

consider the likely benefits arising from its contribution to sustainable

development, ministerial guidance requires the Agency to optimise

environmental benefits, taking account of long-term costs and benefits. The

draft statutory guidance to the Agency also indicates that the Agency should

“develop approaches which deliver environmental requirements and goals

without imposing excessive costs (in relation to benefits gained) on regulated

organisations or on society more widely”.93

The Agency has noted that a formal cost-benefit analysis is not required;94

neither is it restricted to taking account of costs and benefits that are quantifiable

in monetary terms or to reduce all costs and benefits to monetary values,95 or for

that matter, even to strive to maximise net benefit.96 When certain costs and

93 Department for Environment, Food and Rural Affairs, The Environment Agency’s Objectives

and Contribution to Sustainable Development: Statutory Guidance – Consultation Document,

supra, para. 5.8.94 Environment Agency, Sustainable Development: Taking Account of Costs and Benefits

(Sustainable Development Publication Series: SD3) (Bristol: Environment Agency, 1996), para.

3.3.95 This is also the view taken in the ministerial guidance on the scope of the Agency’s duty in

relation to costs and benefits. See Department of the Environment, The Environment Agency

and Sustainable Development, supra, Part II, para. 5.5(iii). Indeed, the Agency’s attempt to

quantify the wildlife and conservation value of reducing the volume of water abstracted by

Thames Water from the river Kennett in Wiltshire should make it clear that any attempt to inject

objectivity in environmental decision-making by reducing all costs and benefits to monetary terms

is illusory because the quantification of certain costs and benefits can be quite subjective. In this

particular case, the value of the river depended on the choice of geographical scope for the

exercise. See “Water Abstraction Decision Deals Savage Blow to Cost-Benefit Analysis” (March

1998) ENDS Report 278: 16.96 Environment Agency, Sustainable Development: Taking Account of Costs and Benefits,

supra., para. 3.2. It is submitted that the Agency’ s interpretation of its duty to take account of

the likely costs and benefits as not amounting to a duty to maximise self-benefit is correct in the

in the light of its other duty to take account of intra-generational and intergenerational equity in

making its contribution to sustainable development.

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benefits cannot be meaningfully reduced to monetary values or aggregated, and

the Agency cannot make a straightforward comparison of the two, it will have to

make a judgement as to the appropriate weight to be assigned to essentially

incommensurable costs and benefits.97 This may involve the use of other

analytic tools such as multi-attribute analysis.98

The Authorisation of Radioactive Waste Disposal

There can be no doubt that the disposal of radioactive wastes, even low-level

radioactive wastes, is a potentially contentious matter. Kemp for example,

described the disposal of radioactive wastes as the most troublesome

environmental problem generated by industrial societies.99 He argued that

technologically acceptable solutions already existed, and that public acceptability

was the key to successful radioactive waste disposal.100 According to him, the

key to cutting the “Gordian Knot of science and values which fetters radioactive

waste disposal”101 is to instil faith and trust in the way in which decisions are

made, inter alia, through consultation and negotiation with the public.102 While

that may be correct from a legitimacy point of view, I show in Chapters 7 and 8

that insofar as the substantive quality of the decision is concerned, the problem

stems from the inability of decision-makers to rationally justify the production and

consequently disposal of radioactive wastes, and in turn the mode of disposal for

disposal of radioactive wastes in sustainable development terms. Ultimately, the

97 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part II, para. 5.5(iii).98 Environment Agency, Sustainable Development: Taking Account of Costs and Benefits,

supra., para. 4.4.99 Kemp, R., The Politics of Radioactive Waste Disposal (Manchester: Manchester University

Press, 1992), p. 1.100 Ibid., loc. cit.. At the same time, he admits that there is little actual operating experience in

radioactive waste management, and much of this limited experience has not been favourable,

thus seemingly contradicting his own claim that acceptable technological solutions already exist.

Presumably, what he has in mind when he refers to technological acceptability is the

acceptability of these solutions to technologists, rather than the technical viability of these

solutions.101 Ibid., p.2.102 Ibid., p. 165.

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decisions to proceed are nothing more than exercises of authority rather than

reason.

The contentiousness of decisions about radioactive waste management in other

aspects of ‘nuclear’ decisions, such as whether to build a thermal oxide

reprocessing plant, or whether to build a pressurised water reactor have also

been studied elsewhere.103 Other writers have considered the fairness and

thoroughness of public inquiries in nuclear-related environmental decision-

making: Wynne examined the extent to which decision-making at the Windscale

Inquiry and public decision-making in general were rationalising rituals rather

than rational processes,104 while O’Riordan, Kemp and Purdue examined the

extent to which the Sizewell B Inquiry was a legitimising rather than legitimate

exercise.105

The regulation of disposal of radioactive wastes in England and Wales comes

under the 1993 Act, and is one of the Environment Agency’s many “pollution

control powers” and “pollution control functions”.106 Under s. 13 of the 1993 Act,

no person may dispose radioactive waste except in accordance with an

authorisation granted by the Agency. An authorisation may be granted subject

to such limitations and conditions as the Agency thinks fit.107 Once granted, an

authorisation is subject to revocation or variation at any time.108 The applicant or

grantee of an authorisation may however appeal to the Secretary of State

against an Agency decision to refuse to grant an authorisation, to grant an

authorisation subject to limitations and conditions, or to revoke or vary an

authorisation.109 The Secretary of State may also give general or specific

103 See Parker, R., The Windscale Inquiry (London: HMSO, 1978); and Layfield, F., Sizewell B

Public Inquiry (London: HMSO, 1987).104 Wynne, B., Rationality and Ritual: The Windscale Inquiry and Nuclear Decisions in Britain,

supra, p. 176. See also, Kemp, R., “Planning, Public Hearings, and the Politics of Discourse”,

supra.105 O’Riordan, T., Kemp, R., and Purdue, M., supra.106 1995 Act, s. 5.107 s. 16(8).108 s. 17.109 s. 26.

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directions to the Agency in respect of any authorisation,110 or direct that an

application for authorisation be referred to him for decision.111

According to statutory ministerial guidance, the Environment Agency contributed

to sustainable development by exercising its regulatory functions under the 1993

Act in accordance with the 1995 White Paper, Review of Radioactive Waste

Management Policy: Final Conclusions.112 This required, inter alia, that

radioactive waste management policy should be based on the same basic principles as

apply more generally to environmental policy and in particular on that of sustainable

development.113

The adherence of radioactive waste management policy to principles of

sustainable development has been reaffirmed in the draft Statutory Guidance to

the Agency on the Regulation of Radioactive Discharges into the Environment

from Nuclear Licensed Sites,114 issued in exercise of powers under s. 4(6) of the

1995 Act. Consistently with these basic principles which included the use of best

possible scientific information and analysis of risks; the adoption of precautionary

action; the consideration of ecological impacts; and the polluter pays principle,

radiation protection principles and criteria were to ensure that there were no

unacceptable risks associated with radioactive waste management. Importantly,

producers and owners of radioactive waste were to ensure that they did not

create waste management problems that could not be resolved using current

techniques, or techniques that could be derived from current lines of

development.115 At the same time, the White Paper pointed out that it had to be

recognised that a point would be reached where additional costs of further

110 s. 23.111 s. 24.112 Department of the Environment, et al, Review of Radioactive Waste Management Policy:

Final Conclusions (Cm 2919) (London: HMSO, 1995). Hereinafter “Review of Radioactive

Waste Management Policy”.113 Ibid., para. 50. Original emphasis.114 Department for Environment, Food and Rural Affairs, Statutory Guidance on the Regulation of

Radioactive Discharges into the Environment from Nuclear Licensed Sites: Consultation Paper

(London: HMSO, 2000), Part I, para. 9.115 Ibid., para. 52.

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reductions in risk exceeded the benefits arising from the improvements in safety

achieved. The level of safety was also not to be inconsistent with those

accepted in other spheres of human activity.116

Public Participation in Environmental Decision-making by the

Environment Agency

One of the ways in which the Environment Agency is required to contribute to

sustainable development is to “strive to develop a close and responsive

relationship with the public, local authorities and other representatives of local

communities, regulated organisations and public bodies with environmental

responsibilities”,117 and to work in partnership with all such groups.118 Increasing

public involvement also supports the government’s sustainable development

strategy of promoting greater public involvement in shaping communities.119

The Environment Agency also acknowledged the value of greater public

participation in informing decision-makers of significant issues of public concern

and the proper weight to be given to various issues120 - “[d]ecisions will be more

robust if based on a measure of consensus between those with a stake in what

happens”.121 As the Agency pointed out, how consensus was achieved was also

important, inter alia, because it shaped the consensus itself.122 In this respect,

the Agency noted that consensus per se was not sufficient; it had to be the result

116 Department of the Environment, et al, Review of Radioactive Waste Management Policy,

supra, para. 51.117 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part I, para. 9(vii).118 Ibid., Part II, para. 4(vi).119 Department of the Environment, Transport and the Regions, A Better Quality of Life, supra,

para. 7.91.120 Environment Agency, Consultation Paper: Proposals for Extended Public Consultation on

Selected Licence Applications (Bristol: Environment Agency, 1999), para. 1.5. Hereinafter

“Proposals for EPC”.121 Environment Agency, Consensus Building for Sustainable Development, SD12 (Bristol:

Environment Agency, 1998), para. 3.2.122 Ibid., para. 2.2.

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of a process that provided for “both informed debate and the opportunity for

divergent views, interests and values to be heard and understood”.123

In line with the its aim of raising the level of increasing public participation in

environmental decision-making, the Environment Agency introduced extended

public consultation for selected licence applications, taking the view that

extended consultation “increases public understanding of applications and the

Agency’s role in determining them, alerts the Agency to public concerns,

establishes the legitimacy of the decision-making process, helps to enhance

public trust and confidence and promotes acceptance of the final decision”.124

Importantly, of the reasons given, only one – “alerts the Agency to public

concerns” – suggests that the public has any contribution to make to the

substantive quality of the Agency’s decision. Even then, only a minor supporting

role is envisaged; the Agency retains full control of the decision-making process

and all determinations of fact and value. The benefits of public participation

discussed in Chapter 4 seem to have been undervalued, overlooked or

neglected.

To further its declared ends of extended public consultation, the Environment

Agency undertook pilot studies of extended public consultation in several of its

environmental decisions. Concurrently, it consulted the public on its proposals

for extended public consultation on selected licence applications, inter alia,

seeking their views of on the criteria for determining when it would be

appropriate to conduct extended public consultation beyond the minimal

statutory requirements for the grant of environmental licences; and the suitability

of various mechanisms for such extended consultation.125 Three years down the

road, the Agency has still not formalised its current ad hoc approach to extended

public consultations in selected environmental decisions.

Taking into account their national importance, significant contentious

environmental issues, history of significant public complaint or concern, and

potential for significant local environmental effects, it is not surprising for

123 Ibid., para. 6.1.124 Environment Agency, Magnox Decision Document, infra, para. P5.34.125 Environment Agency, Proposals for EPC, supra.

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applications for authorisation to dispose radioactive discharges into the

environment to be considered appropriate candidates for extended public

consultation.126 In this regard, the three case studies in Part 2 had all been

subjected to the Agency’s extended public consultation process.

Conclusion

I have in this chapter introduced in broad terms, the policy and regulatory

framework under which the authorisation of radioactive waste disposal takes

place. There is no question that the UK is in principle committed to the

achievement of sustainable development.

While the UK has understood and accepted the objective of sustainable

development, its strategy for attaining sustainable development is itself ultimately

unsustainable. Despite acknowledging the need for intra-generational and

intergenerational equity, the emphasis of the strategy has been on instrumental

rationality. Sustainable development has been interpreted as the improving the

quality of life for all, within ecological limits. Treating the ends of production and

consumption as a given, the strategy’s diagnosis is that unsustainable

development is predominantly related to resource under-supply rather than

resource over-demand due to inequitable resource distribution and accordingly,

the remedy is primarily the prescription of a strong dose of economic growth,

driven by technological innovation and improvements in resource productivity, in

order to increase the supply of resources to meet increasing consumer demand.

Provided it delivers, a strategy that promises more for everyone without

increasing the total quantity of resources consumed is not inconsistent with

sustainable development as distributive justice as such; it is surely in the

common interest of all to have greater access to natural resources to meet their

needs and aspirations. Hypothetically, an economy can continue to grow in a

way that provides for present needs, and at the same time ease the pressure on

natural resources. In reality however, improvements in efficiency often solve

problems but create new ones. Emphasising the technical rather than the equity

126 Ibid., paras. 2.2 and 2.3.

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dimension as the foundation of sustainable development also means that aside

from the question of whether resource efficiency can improve by the requisite

magnitude to meet more needs and aspirations and reduce the UK’s

disproportionate depletion of resources,127 there remains no certainty that

without adequate attention to the distributive effects of such improvements,

priority for access to any surplus ecological capacity will be diverted to meeting

basic needs and nature conservation instead of maximising the satisfaction of

consumer demand according to ability and willingness to pay. Furthermore, a

technical approach to sustainable development is likely to give rise to expert-

driven rather than participation-driven environmental decision-making. A strong

reliance on technological innovation to deliver sustainable development also

encourages greater risk-taking on the part of environmental decision-makers.

Without due regard for equity issues, the distribution of these risks is likely to be

inequitably distributed spatially and temporally, in line with the distribution of

economic and political power.

The Environment Agency’s statutory aim to contribute to the achievement of

sustainable development extends to its function as the regulator of the disposal

of radioactive waste. As such, it is required, consistently with the government’s

strategy for sustainable development, to take into account the economic and

social considerations of its decisions. The extent to which it successfully

balances these considerations when authorising the disposal of radioactive

wastes, to reach decisions based on impartial value judgements and reliable

knowledge will be examined in the chapters that follow.

127 It has been estimated that resource productivity would have to increase tenfold or more by

2050 just to allow economic growth to continue. See Department of the Environment, Transport

and the Regions, Achieving a Better Quality of Life: Review of Progress towards Sustainable

Development – Annual Report 2000 (London: DETR, 2001), para. 4.8.

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Chapter 6: An Overview of the Case Studies and Method of

Study

The Case Studies

As mentioned earlier, the case studies concern the Environment Agency’s

revised authorisations for the disposal by AWE plc of radioactive wastes at the

Atomic Weapons Establishments1 in Aldermaston and Burghfield;2 its

authorisations for the disposal by BNFL of radioactive wastes from several

magnox power stations and a research centre in various locations;3 and its

review of existing authorisations for the disposal of radioactive wastes by BNFL

from operations at Sellafield.4 The study is based on documents published by

the Agency in respect of its public consultation on these decisions, as well as on

my attendance at one public meeting organised by the Agency in respect of the

Sellafield Decision.5

The AWE Decision

The first case study concerns the Agency’s consideration of AWE plc’s

application, in February 1998, to the Environment Agency for revised

authorisations under s. 13 of the 1993 Act to dispose radioactive wastes from the

Atomic Weapons Establishments at Aldermaston and Burghfield in Berkshire

from April 2000.

The Ministry of Defence6 owns the AWE. The site is operated by AWE plc,

which in turn is owned by AWE Management Ltd.,7 a government appointed

1 Hereinafter “AWE”.2 Hereinafter “AWE Decision”.3 Hereinafter “Magnox Decision”. The locations are at Berkeley, Bradwell, Dungeness, Hinkley

Point, Oldbury, Sizewell, Trawsfynydd, and Wylfa.4 Hereinafter “Sellafield Decision”.5 The meeting was held at Manchester Town Hall on 1 November 2001.6 Hereinafter “MOD”.7 Environment Agency, Radioactive Substances Act 1993: Decisions on Application by AWE plc

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contractor comprising a consortium of SERCo, British Nuclear Fuels plc,8 the

Lockheed Martin Corporation,9 and the Secretary of State for Defence.10 AWE

plc designs, manufactures, and services Trident nuclear weapons and carries

out the decommissioning of redundant Chevaline nuclear warheads and

associated nuclear process plants at the two sites.11 The radioactive wastes

arise from the production and support of the new Trident Weapons system and

decommissioning of past site operations since 1950.12 These operations give

rise to solid, liquid and gaseous radioactive wastes principally consisting of

tritium, uranium or plutonium.13

The Environment Agency initiated a review in August 1997 of radioactive waste

management practices at the AWE and concluded that new limitations and

conditions on transfers and discharges of radioactive wastes were necessary.14

Another review was carried out in December 1997, this time by the Radioactive

Waste Management Advisory Committee (“RWMAC”).15 These reviews

prompted an application by AWE plc for revised authorisations.16 Revised

authorisations were granted on in March 2000 and took effect on 1 April 2000.17

to Dispose of Radioactive Wastes from the Atomic Weapons Establishments at Aldermaston and

Burghfield (Bristol: Environment Agency, 2000), para. 1.4.3. Hereinafter “AWE Decision

Document”.8 Hereinafter “BNFL”.9 Environment Agency, AWE Decision Document, supra, para. 1.4.4.10 Environment Agency, Radioactive Substances Act 1993: Consultation Document on

Application by AWE plc for Authorisation to Dispose of Radioactive Wastes from the Atomic

Weapons Establishments at Aldermaston and Burghfield (Bristol: Environment Agency, 1999)

(hereinafter “AWE Consultation Document”), para. 1.5.3.11 Ibid., para. 1.3.1.12 Ibid., para. 1.4.1.13 Ibid., para. 1.3.2.14 Ibid., para. 1.7.1.15 Ibid., para. 1.7.2. The Committee, hereinafter “RWMAC”, was set up primarily to advise the

Secretaries of State for the Environment, Scotland and Wales on the technical and

environmental implications of major issues concerning the development and implementation of

an overall policy for all aspects of the management of civil radioactive waste.16 Ibid., para. 1.7.3.17 Environment Agency, AWE Decision Document, supra, paras. 5.5 and 5.6.

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The Magnox Decision

The second case study concerns the Environment Agency’s consideration of

applications from BNFL. The applicant was set up in 1971 out of the Production

Group of the UK Atomic Energy Authority, and became a private limited

company in 1984. Prior to BNFL’s application for authorisation for disposal of

radioactive wastes from the eight magnox power stations and research facility in

question, all variously located,18 authorisations to dispose radioactive wastes

from these power stations and the research facility were held by Magnox Electric

plc, a wholly owned subsidiary of BNFL. Radioactive wastes discharged at

these sites include discharges of tritium, carbon-14, sulphur-35, argon-41,

caesium-134, caesium-137 and strontium-90.19 When BNFL decided to take

over the operation of five of these power stations and the research facility as well

as the decommissioning of the remaining three power stations in 1998, it

became necessary for BNFL to apply for its own authorisations for the disposal

of radioactive wastes from these sites.20 On 31 July 2001, the Agency proposed

to grant the authorisations. These proposals were published on 30 August

2001.21 It is now waiting for the Ministers’ decision whether to exercise their

powers under the 1993 Act to issue directions to the Agency.

The Sellafield Decision

The activities of BNFL undertaken at the Sellafield site which give rise to

radioactive wastes are spent fuel (magnox and oxide) reprocessing; liquid waste

storage and treatment; solid waste storage, retrieval and treatment;

18 Namely Gloucestershire, Essex, Kent, Somerset, South Gloucestershire, Suffolk, Gwynedd,

and Anglesey.19 Environment Agency, AWE Decision Document, supra, paras. P1.21 to P1.31.20 Environment Agency, Radioactive Substances Act 1993: Proposed Decision Document on

Applications Made By British Nuclear Fuels plc to Dispose of Radioactive Wastes From: Berkeley

Centre, Berkeley Power Station, Bradwell Power Station, Dungeness A Power Station, Hinkley

Point A Power Station, Oldbury Power Station, Sizewell A Power Station, Transfynydd Power

Station, Wylfa Power Station (Bristol: Environment Agency, 2001), p. 7. Hereinafter “Magnox

Decision Document”.21 Ibid., Part 7.

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decommissioning operations; the operation of a nuclear power station; and

radiochemical analysis and research and development.22 The numerous

principal radionuclides produced from these activities and their current disposal

routes are set out in the Sellafield Consultation Document.23

The current authorisations for the discharge of liquid and gaseous radioactive

wastes by BNFL at the Sellafield site were issued in 1994 while the authorisation

for disposal of low-level solid radioactive wastes was issued in the 1970s. As

part of its function in regulating radioactive waste disposal, and at the request of

the then Secretary of State for the Environment and the Minister of Agriculture,

the Environment Agency commenced a re-examination of the existing

authorisations for the disposal of liquid and gaseous radioactive wastes by BNFL

at the site in 199624 with a view to varying the authorisations under s. 17 of the

1993 Act.25 This re-examination was deferred shortly thereafter to enable the

Agency to consider BNFL’s application for certain variations to existing

authorisations. Having granted the application in January 2000, the Agency

resumed its re-examination with a view to issuing variations to all existing

authorisations to dispose radioactive wastes at the site so as to include new

limits and conditions as appropriate.26

The review has been taking place in a number of stages. The Environment

Agency consulted the public and interested parties on its proposed scope and

methodology for the re-examination from February to April 2000,27 and

Environment Agency, Radioactive Substances Act 1993: Explanatory Document to Assist Public

Consultation on Proposals for the Future Regulation of Disposals of Radioactive Waste from

British Nuclear Fuels plc Sellafield (Bristol: Environment Agency, 2001), Appendix 3. Hereinafter

“Sellafield Consultation Document”.23 Ibid., paras. 5.14 and 5.23.24 Environment Agency, Radioactive Substances Act 1993: Scope and Methodology for the Full

Re-examination of the Sellafield Authorisations for the Disposal of Radioactive Waste (Bristol:

Environment Agency, 2000), para. 2.0. Hereinafter “Sellafield Scope and Methodology

Consultation Document”.25 Ibid., p. 4.26 A decision was taken to widen the scope to the re-examination (ibid., p. 3).27 Environment Agency, Sellafield Scope and Methodology Consultation Document, supra.

143

responded to their comments in August 2000.28 In the meantime, at the request

of the then DETR, the Agency began a fast track review of the discharge of

technetium-99 into the Irish Sea with a view to reducing discharges from 90 TBq

per year to below 10 TBq per year by 2006. Public consultation on its proposals

for the future regulation of technetium-99 discharges took place from November

2000 to March 200129, and the Agency issued its proposed decision in

September 2001.30 The latest round of public consultation is in respect of the

Agency’s proposals for the future regulation of radioactive wastes disposal from

Sellafield (excluding those for technetium-99), and recently took place from July

to December 2001.31 The Agency has yet to reach a decision on the review.

The focus of the third case study is on the environmental decision-making

process relating to the main review of the future regulation of radioactive wastes

disposal from Sellafield.

The Criteria for Evaluating Public Participation

I concluded in Chapter 4 that broad-based public deliberation in environmental

decision-making could enhance the quality of environmental decisions because it

increases the likelihood that value judgements will be made impartially and

knowledge construction will be unbiased. It is clear that not all forms of public

participation are equally effective in improving the quality of environmental

decisions. In particular, participation on unequal or coercive terms on the basis

of relative political or economic power instead of on the basis of a rationally

accepted consensus amongst moral equals motivated to act impartially in the

common interest will not contribute to sustainable development if it reinforces the

28 Environment Agency, Radioactive Substances Act 1993: Response to Comments on the

“Scope and Methodology for the Full Re-examination of the Sellafield Authorisations for the

Disposal of Radioactive Waste” (Bristol: Environment Agency, 2000). Hereinafter “Sellafield

Scope and Methodology Response Document”.29 Environment Agency, Radioactive Substances Act 1993: Explanatory Document to Assist

Public Consultation for the Future Regulation of Technetium-99 Discharges from British Nuclear

Fuels plc, Sellafield into the Irish Sea (Bristol: Environment Agency, 2000).30 Environment Agency, Radioactive Substances Act 1993: Proposed Decision on the Future

Regulation of Technetium-99 Discharges from British Nuclear Fuels plc Sellafield into the Irish

Sea (Bristol: Environment Agency, 2001).31 Environment Agency, Sellafield Consultation Document, supra.

144

existing inequitable access to natural resources to meet needs within and

between generations or produces well-intentioned but misinformed outcomes

that are not properly grounded in reliable knowledge.

Habermas is one writer amongst others whose work is orientated towards the

inter-subjective understanding and the coordination of actions through reflective

discussion.32 He argues that public participation, or more specifically public

discourse, in an ideal speech situation leads to comprehensively rational

decisions.33 Discourse participants in an ideal speech situation engage freely in

dialogue on equal terms. They have equal rights to make validity claims34 to

others about the objective world, their shared norms and values, and their

subjective feelings; and equal duties, if required to do so by other participants, to

justify he comprehensibility, truth, correctness or sincerity of their claims on

rational grounds.

Building on Habermas’ theory of communicative action and the ideal speech

situation,35 Webler proposed criteria for evaluating the extent to which public

participation procedure promoted the fairness and competence of public

participation in environmental decision-making.36 Briefly, fairness refers to the

distribution among participants of opportunities to attend, initiate discourse,

discuss, and make decisions at each stage of environmental decision-making,

namely agenda and rule setting, moderation and rule enforcement, and

discussion.37 To promote competent discourse, which he defined as the

construction of “the most valid understandings and agreements and agreements

possible given what is reasonably knowable at the time”,38 Webler suggested

that the public participation procedure should provide access to information and

32 See also Dryzek, J., Discursive Democracy: Politics, Policy, and Political Science, supra, pp.

13-4; and Barber, B. R., supra.33 McCarthy, T., supra, Ch. 4.34 Webler describes a validity claim as “the appeal implicit in a statement that makes the

message meaningful”. See Webler, T., supra, p. 43. Original emphasis.35 Ibid., pp. 41-2.36 I describe these criteria in greater detail in Chapter 6.37 Webler, T., supra, p. 62.38 Ibid., p. 58.

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its interpretations, and procedures for the evaluation and selection of knowledge

by participants.39

Webler is not the first to use the concept of the ideal speech situation to develop

normative criteria for public participation in environmental decision-making.

Forester had used the ideal speech situation to planning practice, and argued

that planning practice should be communicative rather than exclusively

instrumental or technocratic. Effective communication revealed true alternatives,

corrected false expectations, countered cynicism, fostered inquiry, and spread

political responsibility, engagement, and action. In order to be effective

communicators, planners ought therefore to strive to be comprehensible,

sincere, legitimate, i.e., appropriate to the context and topics under discussion,

and truthful.40

Kemp evaluated the public local inquiry on nuclear waste reprocessing at

Windscale. He concluded that the communication process at the inquiry was

systematically distorted to enable the domination of particular interests over

more generalizable interests and the outcome did not reflect a genuine

consensus on the issue reached solely due to the force of the better argument.41

Together with O’Riordan and Purdue, Kemp also considered the extent to which

the Sizewell inquiry was full, fair, and through, i.e., whether decision-making was

merely legitimising rather than truly legitimate.42

More recently, Palerm used the principles of the ideal speech situation as a

basis for evaluating the application of the Aarhus Convention in the context of

environmental impact assessments and concluded that the Convention fell short

of Habermas’ conditions for communicative action under the ideal speech

situation.43

39 Ibid., p. 65.40 Forester, J., supra.41 Kemp, R., “Planning, Public Hearings, and the Politics of Discourse”, supra.42 O’Riordan, T., Kemp, R., and Purdue, M., supra.43 Palerm, J. R., supra.

146

As Webler pointed out however, previous studies had emphasised the legitimacy

of decision-making and therefore focussed on the fairness the rules of discourse

with less consideration given to the extent to which these rules promoted

competence.44 An emphasis on fairness in discourse could facilitate unforced

consensus, but without more, could also leave participants to examine

knowledge issues that went beyond their competence, leading to lengthy

discourses and outcomes with varying substantive quality depending on the

competence of the participants in each particular discourse.45 Webler therefore

proposed evaluating the fairness and competence components of the ideal

speech situation separately so as to redress the imbalance in emphasis.46

I describe below, the fairness and competence criteria for assessing the quality

of public participation in environmental decision-making. These criteria are

primarily drawn from those proposed by Webler, but have been modified for

greater emphasis on participation for contribution to sustainable development.

Fair Public Participation

According to Webler, a fair procedure was one in which everyone who was

potentially affected by a proposed decision has an equal chance to be present or

represented at the deliberation. They ought to have an equal opportunity to put

their concerns on the agenda and to approve or propose rules for their

discourse, to select a moderator or facilitator who will enforce these rules, and to

make validity claims and to challenge the claims of others.47

Attendance

Webler defineds the potentially affected population who should have a legitimate

right to participate in environmental decision-making as the “individuals or

groups whose interests or values may be affected by the proposed decision

44 Webler, T., supra, p. 56.45 Ibid., pp. 55-6.46 Ibid., pp. 53-4.47 Webler, T., supra, pp. 79-81.

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action”.48 This view is consistent with the requirement for broad-based

participation in environmental decision-making. Interests alone cannot constitute

an exhaustive entry criterion for public participation in environmental decision-

making with a view to contributing to sustainable development. Given the

uncertain environmental impacts of many modern activities, it is often difficult to

determine at the outset whether a person’s interests will not be affected by a

proposed activity. Furthermore, as the RCEP pointed out, participation on the

basis of affected interests alone would lead to a focus on negotiation with the

aim of reaching an expedient compromise.49 Steele similarly argued that whilst

participation amongst those affected only might suffice for the purpose of

legitimacy, it might not be adequate if the aim of public participation was to

improve the quality of the decision; interested parties contributed breadth of

reflection to complement the “situated knowledge” of affected parties.50 In order

to ensure greater intra-generational and inter-generational equity in access to

natural resources, broad-based participation had to be encouraged.

The potential invitees for would have to be defined by objective and subjective

criteria.51 “Objective” procedures such as risk analysis, social impact analysis,

and value tree analysis could reveal the physical, social, economic, or value

impacts.52 In the case of environmental decision-making, an environmental

impact analysis would also be invaluable in exposing impacts. As objective

criteria were not infallible, subjective criteria for participation would still be

necessary so that people could participate if they decided their values or

interests were affected by a proposed decision.53

Giving affected and interested parties the right to participate in environmental

decision-making may be adequate for legitimising the decision, but if broad-

based public participation in environmental decision-making is to improve the

48 Ibid., p. 52. Emphasis mine.49 Royal Commission on Environmental Pollution, The Twenty-first Report: Setting Environmental

Standards, supra, para. 7.7.50 Steele, J., supra, p. 437.51 Webler, T., supra, p. 52.52 Ibid., loc. cit..53 Ibid., p. 53.

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quality of the decision, then as rightly recommended by Steele, it was not

enough merely to open the doors to the affected and interested parties,

strategies needed to be adopted for getting them through the door.54 Thus,

active steps could have to be taken to encourage (not just permit) participation,

including greater publicity of the proposed decision and opportunities for

participation, and more accessible participation modes, times and venues.

Agenda and Rules

The agenda and rules of the discourse established the framework within which

discussion to take place. The agenda defined the issues for discussion, and

when and how much time to discuss any particular issue. The rules of the

discourse shaped the way deliberation is to be conducted – the management of

interruptions and disruptions, resolution of stalemates, maintenance of decorum,

etc. Control over either or both could confer decisive control over the outcome of

the discourse. Fairness therefore required that all participants have an equal

opportunity to participate in the process of setting the agenda or establishing the

rules.55

In a sense, the question of agenda and the opportunity to participate are

mutually related. Participants shape the issues, but at the same time, the way a

problem is characterised influences the definition of the affected population. The

agenda and the affected population may therefore have to be refined through

successive iterative cycles of population definition and agenda setting in turn.

Facilitator/Moderator

Aside from having the opportunity to select the mode and rules of participation,

participants also had to agree on a means to enforce the agenda and rules of

discourse. He would have to be someone the participants could agree was

independent and impartial.56 The facilitator/moderator’s role was to interpret and

enforce the rules of discourse and to ensure that the conditions for ideal speech

54 Steele, J., supra, p. 433.55 Ibid., p. 62.56 Ibid., p. 64.

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obtained as far as possible. This could include the curtailment of filibustering or

the reduction of disparities in the abilities and resources of participants by

drawing out the views of less dominant or vocal participants, or assisting

inadequately resourced or supported participants in gathering or presentation of

technically complex information. Finally, the facilitator or moderator could assist

in the reporting or recording of the decision that emerges at the end of the

deliberation.

The Environment Agency endorses similar criteria for fairness. It noted that

fairness was about opportunities for influencing the process and that

communication was fair to the extent that opportunities exist for the expression

of legitimate personal interests and contribution to the development of an

agreement, in particular

the opportunities for everyone to suggest the issues to be discussed; the means by which

disagreement over the agenda and rules can be resolved; opportunities for individuals to

suggest a facilitator; the identification of all individuals and groups that could be affected

by the decision; and opportunities for everyone to have an equal chance to participate, to

express views and to challenge information and claims.57

Competent Public Participation

As Webler pointed out, fairness in discourse rules merely sought to neutralise

power relations by opening up opportunities to make and redeem validity

claims.58 While it was theoretically possible for fair participation rules alone to

eventually lead communicatively competent participants to a consensus that

contributed to sustainable development, it was desirable for practical reasons to

introduce rules to facilitate competent discussion.59

By competence, Webler meant the quality of rules leading to the “construction of

the best possible understandings and agreements given what is reasonably

57 Environment Agency, Consensus Building for Sustainable Development, supra, para. 6.3.58 Webler, T., supra, p. 53.59 Ibid., p. 58.

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knowable at the time”.60 Such rules increased efficiency in discourse; limited the

possibility for strategic action; provided consistency of outcomes across separate

discourses; managed the problem of unlimited demand for justification of validity

claims; and satisfied the need for closure within a fixed period of time for

discourse.61 The Environment Agency also endorsed the need for rules for

competent public discourse, i.e., the ability of a process to provide all

participants with the procedural tools and knowledge needed to make the best

possible decision.62

Following Habermas, Webler identified four types of discourses, each with its

own rules to ensure competence: explicative discourse, relating to the

comprehensibility of assertions; theoretical discourse, relating to truths of the

objectified world; practical discourse, relating to normative choices; and

therapeutic discourse, relating to the subjective experiences of the participants.

For the purpose of my thesis, I will only be focussing on two of the four types of

discourses, namely theoretical discourse and practical discourse.63 It should be

pointed out that these different types of discourse are separately considered only

for the purpose of analysis. In practice, they are inter-related, as statements of

participants will contain a combination of validity claims requiring a simultaneous

engagement in the various types of discourse. Competence in any one type of

discourse must be matched by competence in the other types of discourse; the

lack of competence in one type of discourse will undermine any perceived

competence in other types of discourse.

The rules for each type of discourse need to ensure that participants have

access to the knowledge and interpretations for choosing and implementing the

most competent procedures for resolving disagreement about knowledge and

interpretation. The reliability and accuracy of these procedures would have been

tried and proven over time,64 but are not intended to be entrenched. Rather,

60 Ibid., loc. cit..61 Ibid., loc. cit..62 Environment Agency, Consensus Building for Sustainable Development, supra, para. 6.3.63 See Chapter 8 for my reasons for focussing on the theoretical discourse and practical

discourse.64 Webler, T., supra, p. 59.

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they are to be used as a starting point for discourse; where better procedures

emerge, or where they are found to have the effect of systematically

disadvantaging some participants, they may be superseded or modified.65

Theoretical Discourse

According to Webler, theoretical discourse related to the ‘facts’ about the

external world. These facts were gathered through scientific methodologies as

well as through personal anecdotal experience. They included not only the

observed data, but also its analysis and interpretation in terms of ‘what

mattered’,66 which in our case, is the contribution to sustainable development.

Within the framework of contributing to sustainable development, theoretical

discourse on the authorisation of radioactive waste disposal would necessarily

focus on the needs intended to be met by the proposed activity that necessitates

the production of radioactive wastes, alternative means for meeting such needs

and alternative means of disposal of the radioactive wastes, the socio-economic

and environmental baselines, as well as the positive and negative impacts of the

activity including disposal of radioactive wastes as well as of the alternatives.

Rules for competent theoretical discourse may require participants to resort to

pre-existing knowledge and personal experiences and, where these are

inconclusive, to seek the assistance of experts in making evidence and

interpretations available to all participants.67 All available relevant information

should be accessible to all participants. The availability and accessibility of such

information must not merely relate to the raw data. Such data needs to be

collated and ‘translated’ into a form whereby its significance and implications can

be understood by lay participants. Where information is withheld or effectively

inaccessible to certain individuals, participants start off with an imbalance in the

information available to them, with some participants in a stronger position than

65 Ibid., pp. 57 and 59.66 Ibid., pp. 65 and 67.67 Ibid., pp. 56 and 67.

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others because of a privileged access to information that other participants do

not have the opportunity to access or verify independently.

As I pointed out in Chapter 4, however, knowledge about the objective world is

the result of inter-subjective human enterprise, and necessarily bears the

hallmarks of the professional and personal values of those who contribute to it.

Participants should be able to seek the advice of experts where there is

agreement amongst participants that they collectively lack the necessary

specialist knowledge themselves, but since experts may be tainted by conscious

and subconscious personal and institutional bias, it is important that there is a

consensus on the choice of experts to be consulted or at least a wide range of

expert opinion to provide an impartial view of the truth, so that no one

perspective systematically dominates other perspectives. Where such

consensus is not forthcoming, it may be necessary to ensure that all participants

have access to resources to consult their own experts and for such expert views

to be included in the discourse.68 Reliance on the authoritative assertion of

expertise on the basis of credentials can no longer be accepted as a competent

mode of evaluating conflicting theoretical claims since such reliance ultimately

rests on standing in the expert community rather than the force of the better

argument. For the same reason, participants should be entitled to contribute

personal anecdotal knowledge; such knowledge, if supported by sound

reasoning, is not necessarily inferior or invalid even though it may not conform to

the conventions of the scientific establishment.

In the last resort, where reasonable agreement is impossible, not least because

decision-making must take place within time and resource constraints, the

inconclusiveness of the ‘facts’ may have to be accepted. This does not

necessarily reflect negatively on the competence of the discourse, rather it may

be a realistic acknowledgement that knowledge for the purposes of

environmental decision-making can seldom be conclusive. Ultimately, conflicting

claims about the objective world cannot be evaluated using only competent

theoretical discourse; practical discourse will be necessary for the exercise of

68 Ibid., p. 82, Appendix, para. E1-2.

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evidentiary judgement to bridge the gap between incomplete or uncertain

knowledge and final decision.

Practical Discourse

Webler described practical discourse as involving “disputes over claims about

the appropriateness of social relations (norms)”.69 In contrast with the concern

over the positive in theoretical discourse, a practical discourse was concerned

with normative choices; what we should do, what our ends should be, and what

sort of community we should become. A practical discourse would naturally be

intimately connected with a theoretical discourse about what is factually possible

and the factual consequences of our normative choices, but the dominant aspect

of a practical discourse would be an examination of the appropriate values that

were applicable to the decision at hand.

Within the framework of sustainable development, practical discourse would

necessarily focus on the ethical value judgements of separating the basic needs

from the aspirations. Identifying a need as basic rather than aspirational implied

an acceptance that in terms of access to natural resources, meeting the need

took precedence over the satisfaction of aspirational needs. More specifically, in

respect of the authorisation of radioactive wastes disposal, key ethical

judgements would include a consideration of the importance of the needs to be

served by the activity for which the production and consequent disposal of

radioactive waste is unavoidable, taking into account the positive and negative

impacts of such activity and disposal on other present needs and on the state of

the environment. Since our needs are not always all-or-nothing needs.

Appropriate ethical judgement would be needed for the proper and just balance

to be struck between competing needs.

Practical discourse also has an important role in the articulation of evidentiary

judgements when the evidence for theoretical discourse is inconclusive. In the

context of sustainable development, competence in the rules for practical

discourse would favour the application of the precautionary principle. According

69 Ibid., p. 69.

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to this principle, absolute scientific certainty of a threat of serious or irreversible

damage to the environment is unnecessary for the purpose of taking preventive

action to avert such a potential threat.70

As I noted in Chapter 4, impartial value judgements emerge when participants

“debate, discuss, and challenge” one another’s ethical judgements, using

generalised principles that other participants cannot reasonably reject. The

exercise of ethical and evidentiary value judgments in environmental decision-

making is more likely to be impartial and in the common interest when the

judgements are the product of deliberation amongst participants rather than the

monological reasoning of a like-minded political party leadership. Competent

rules for practical discourse will also need to provide a means for selecting from

conflicting normative claims. As Webler pointed out, a basic requirement of

normative choice was that it had to be coherent and consistent with the other

normative choices that we made in our lives.71

Where normative choices were in conflict, there may be a need to take practical

discourse a step further by reviewing the values underlying these conflicting

choices, or to engage in theoretical discourse about the validity of the underlying

factual premises on which our values or normative choices are based. Yet, while

convergence in value judgements may emerge after iterations of deliberation,

and over a period of time, it may be initially be unrealistic to expect a timely

consensus. One way to achieve closure competently may be through a vote on

the issues at the end of the discourse, or through compromise on rationally

justifiable grounds. At the very least, this is more likely to achieve a competent

closure in arriving at impartial value judgement in the common interest than

expediently leaving all value judgements to a political elite.

The Inherent Limitations of Public Participation

While up to a point, fair and competent public participation are mutually

reinforcing, the two can also be in conflict, particularly in relation to decision-

70 See Chapter 4 for the relevance of public participation to the application of the precautionary

principle.71 Webler, T., supra, p. 69.

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making on a large-scale. The WCED suggested that public deliberation was

more suited for local community based environmental decision-making. Indeed,

this was one reason they advocated decentralisation of resource management,

promotion of local initiatives, the empowerment of local organisations, and the

strengthening of local democracy.72 However, environmental decision-making at

a national, regional, or even international scale is sometimes inevitable. At such

a large scale, the conflict between opportunities for attendance and opportunities

for public deliberation increases. Beyond an optimum point, as number of

participants increases, opportunities for meaningful discourse diminishes. The

more people take part in meetings, the longer and the more meetings it takes to

make reach an uncoerced decision.73 Thus, for large-scale projects, the WCED

recommended public participation in the form of public inquiries and hearings on

the development and environment impacts in order to draw the decision-maker’s

attention to different points of view. Depending on the gravity of environmental

consequences, public scrutiny and public approval could even be necessary.74

Barber suggested that technology could provide the way forward for public

deliberation on a large scale. He argued that scale was in part a communication

problem, and that electronic enhancement of communication, e.g., television,

town meetings using cable television, and computers offered new modes for

large-scale communication. He conceded however, that these new modes

sacrificed intimacy, diminished the sense of face-to-face confrontation, and

increased the dangers of elite manipulation.75

Secondly, there is no guarantee that participants will arrive at an uncoerced

consensus on the basis of rational argument, not least because of the

environmental decision-making can be extremely complex and there may not

always be a unique path to sustainable development. While it might be

reasonable to expect a convergence in the values and knowledge of participants,

72 World Commission on Environment and Development, supra, p. 63.73 Goodin, R. E., Green Political Theory, supra, pp. 140-1. See also Rossi. J., “Participation Run

Amok: the Costs of Mass Participation for Deliberative Agency Decision Making” (1997)

Northwestern University Law Review 92: 173.74 World Commission on Environment and Development, supra, pp. 63-475 Barber, B. R., supra, pp. 273-8.

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it is by no means certain that rational discourse this convergence will always

lead to a determinate conclusion. Ultimately, failing consensus, participants will

have to reach closure through compromise on terms that are themselves

justifiable on discursive terms.76

The use of the ideal speech situation to attain inter-generational justice poses

further difficulty since future generations have no ”communicative competence”;

we are not able to enter into any discourse with future generations. Where

dialogical deliberation proves impossible, it may be ultimately necessary to resort

to some qualified monological ethical judgement.

Some environmental political theorists have sought to ‘save’ Habermas’ ideal

speech situation by allowing advocates to participate on behalf of those who

cannot communicate, or by extending the notion of communication itself. For

example, Dobson advocated the election of representatives for future

generations by a proxy electorate made up those from the present generation

who argue in favour of environmental sustainability.77 Dryzek78 and Goodin79

argued respectively that the interests of non-participants in the dialogue, e.g.,

non-humans and future generations, had to be accommodated within the

discursive dialogue, through the reception and interpretation of signals from the

natural world or through a process of putting oneself into the situation of others.

Less true to the spirit of the ideal speech situation, some writers advocated the

imposition of constraints on the ideal speech. Christoff argued that since “fish

cannot raise their fins to vote nor the unborn express their potential desires”,

existing humans had to “assume responsibility for future humans and other

species and represent their rights and potential choices according to the duties

of environmental stewardship” in deliberative democratic processes, constrained

76 White, S. K., supra, pp. 76-7.77 Dobson, A., “Representative Democracy and the Environment”, in Lafferty, W. M., and

Meadowcroft, J., (eds.), Democracy and the Environment: Problems and Prospects

(Cheltenham: Edward Elgar, 1996), p. 124.78 Dryzek, J., “Green Reason: Communicative Ethics for the Biosphere” (1990) Environmental

Ethics 12: 195; and Goodin, R. E., “Political and Ecological Communication”, in Mathews, F.,

(ed.), Ecology and Democracy (London: Frank Cass, 1996), p. 13, at 15 and 24.79 Goodin, R. E., “Enfranchising the Earth, and its Alternative” (1996) Political Studies 44(5): 835.

157

by universal ecological values or principles.80 Eckersley echoed the view that

ecological value constraints were necessary. She argued that the ideal speech

situation arbitrarily facilitated domination over the communicatively incompetent.

As such, the rules of the discourse had to be modified to include procedural

norms such as the precautionary principle to allow the communicatively

incompetent to be systematically represented rather than leaving it to the

“uncertain inclinations of participants in the dialogue”.81 She conceded however,

that ultimately it would be up to dialogue participants to interpret such norms.

Fair and Competent Public Participation as an Approximate

Indicator of Substantive Quality of Environmental Decision-

making

As long as an environmental decision does not directly deprive someone of

obvious basic needs, or cause clear-cut ecological harm, it is difficult to evaluate

whether or not an environmental decision is in fact contributing to sustainable

development. Evaluation is particularly difficult while the decision is being

taken, or in the period immediately following the decision or its implementation.

The introduction of procedural criteria to guide the environmental decision-

making process and as a tentative means for evaluating the substantive quality

of its outcome is therefore a welcome supplementary evaluation tool.

Webler’s framework offers procedural criteria for evaluating the fairness and

competence of public participation in environmental decision-making. An

environmental decision that incorporates fair and competent public participation

in its decision-making process is likely to be one informed by just values and

reliable knowledge and therefore one more likely to contribute to sustainable

development. Where on the other hand, public participation is suppressed or

distorted; it is more likely that the environmental decision that ensues is

80 Christoff, P., “Ecological Citizens and Ecologically Guided Democracy” in Doherty, B., and de

Geus, M., (eds.), supra, p. 151, at 158-9, and 163-4.81 Eckersley, R., “Green Justice, the State and Democracy”, Paper presented at Conference

entitled Environmental Justice: Global Ethics for the 21st Century, October 1-3, 1997. Online at

http://www.arbld.unimelb.edu.au/envjust/papers/allpapers/eckersley/home.htm (as at 17 April

2002). See also Barry, J., Rethinking Green Politics (London: SAGE Publications, 1999), p. 225.

158

dominated by the narrow self-interests of the politically and economically

privileged.

The procedural criteria fair and competent public participation do not guarantee

any particular desired outcome, let alone sustainable development; procedural

criteria can only provide indicators for its expected performance in outcomes.82

The criteria are only intended to represent an ideal model against which existing

procedures can be critiqued. The fact that the ideal may never be achieved in

the real world where constraints abound is not a reason to abandon the ideal;

ideals exist precisely to provide directions for further progress.

There is also no denying that there are inherent and practical limitations on the

extent to which public participation can be fair and competent. This is

particularly true in respect of environmental decisions with large-scale or long-

term effects. Nevertheless, the introduction of fair and competent public

participation in environmental decision-making, even in an imperfect form,

remains an invaluable procedural tool for the contribution of sustainable

development in environmental decision-making. Furthermore, the fact that the

ideal speech situation cannot be fully achieved in practice does not mean it

cannot be used as a basis for critical evaluation of existing law and practice and

as a constructive guide for improvement in these areas.

Having introduced the background to the case studies, and the criteria for

evaluating the fairness and competence of the law and Environment Agency

practice on public participation, I now turn to the case studies proper.

82 Webler, T., supra, p. 42.

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Chapter 7: The Fairness of Public Participation in the

Authorisation of Radioactive Waste Disposal

I begin my analysis of the law and Environment Agency practice relating to

public participation in the authorisation of radioactive waste disposal in this

chapter with an assessment of the fairness of the law and practice. I consider in

turn, whether the legislation for the regulation of radioactive waste disposal,

common law, human rights legislation, the Aarhus Convention, and Environment

Agency practice meet each of the fairness criteria set out in the previous

chapter, namely fairness in the selection of participants, selection of the agenda

and rules for participation, and appointment of a facilitator/moderator.

(A) Attendance

Radioactive Substances Act 1993

Under the 1993 Act, as amended by the 1995 Act and the Food Standards Act

1999,83 the Agency is required to consult the Food and Standards Agency84 and

the Health and Safety Executive before deciding whether to grant an

authorisation to dispose radioactive waste under s. 13 of the 1993 Act, or a

variation of the authorisation under s. 17 of the 1993 Act.85 The Agency must

send a copy of the application to the FSA and each local authority in whose area

an applicant for authorisation proposes to dispose radioactive waste.86 In

addition, where the radioactive wastes to be disposed are on or from a nuclear

site, the Agency must before granting an authorisation, consult with “such local

authorities, relevant water bodies or other public or local authorities as appear

appropriate to be consulted”.87 There are no requirements to consult members

of the public as such.88

83 Hereinafter “1999 Act”.84 Hereinafter “FSA”.85 ss. 16(4A) and 17(2A), as amended by 1999 Act, s. 18 and Sch. 3, para. 21.86 ss. 16(4A)(b) and 16(6).87 s. 16(5). There does not seem to be a requirement to consult these local authorities in the

case of a variation of these authorisations, only a duty to send a copy of the notice of variation to

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While there is no direct statutory requirement for the Environment Agency to

allow public participation in its environmental decision-making under the 1993

Act, it is required pursuant to statutory guidance to “strive to develop a close and

responsive relationship with the public…”.89 The Agency is therefore arguably

under an indirect statutory obligation to consider public consultation of its

proposed decisions as part of its efforts to develop a close and responsive

relationship with the public.

Local Inquiry

There is also a duty on the part of the Secretary of State to consider whether to

hold a local inquiry under the 1993 Act. Under s. 24(2) of the Act, the Secretary

of State may call-in an application for authorisation to discharge radioactive

waste, and in the event of call-in, may cause a local inquiry to be held in respect

of the application.90 This power is in addition to the Secretary’s general power

under s. 53 of the 1995 Act to cause an inquiry to be held if it appears expedient

to her to do so in respect of the Environment Agency’s functions or the ministers’

functions in relation to the Agency.

The discretion to hold a local inquiry is broad, but must be exercised to further

the purpose for which it was conferred. According to the Committee on

Administrative Tribunals and Inquiries,

The intention of the legislature in providing for an inquiry or hearing in certain

them after the fact (see s. 17(3(b)).88 Indeed, an express statutory provision to consult certain parties has been construed as

impliedly excluding a duty to consult other parties (see for example, Bates v. Lord Hailsham of

St. Marylebone [1972] 3 All ER 1019, 1024).89 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part I, para. 9(vii).90 Ibid., s. 24(4A) read with 1999 Act, s. 26. The function of the Secretary of State in this regard

was exercisable by the Secretary of State of the Environment and the Regions and the Minister

of Agriculture, Fisheries and Food. After 1st April 2000, the function ceased to be exercisable by

the Minster of Agriculture, Fisheries and Food. The functions of the Secretary of State are now

exercisable by the Secretary of State for the Environment, Food and Rural Affairs and the

Secretary of State for Health.

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circumstances appears to be twofold: to ensure that the interests of the citizen closely

affected should be protected by the grant to them of a statutory right to be heard in support

of their objections and to ensure that the Minister should be better informed about the facts

of the case.91

Lord Diplock expressed a similar view in Bushell & anor. v. Secretary of State for

the Environment:

The purpose of the inquiry is to provide the minister with as much information about those

objections as will ensure that in reaching his decision he will have weighed the harm to

local interests and private persons who may be adversely affected by the scheme against

the public benefit which the scheme is likely to achieve and will not have failed to take into

consideration any matters which he ought to have taken into consideration.92

In R. v. Secretary of State for the Environment & Ors., ex p. Greenpeace &

anor.,93 the Secretary of State for the Environment’s refusal to exercise his

discretion under s. 24 of the 1993 Act to call-in applications by BNFL for

authorisations to discharge radioactive wastes or to cause a local inquiry to be

held was challenged.

Potts J. held that provided the Secretary of State had applied his mind genuinely

and rationally to the issue of whether or not to hold a public inquiry, his decision

could not be impugned.94 Quoting with approval the dictum of Webster J. in

Binney & Anscomb v. Secretary of State for the Environment & Secretary of

State for Transport,95 he agreed that the Secretary of State properly directing

himself and acting reasonably could not be satisfied that a public inquiry was

unnecessary unless he was satisfied of at least two things, namely that

without a public inquiry he can properly weigh any two or more conflicting issues, and

secondly that those with the right to make representations can have their representations

91 Report of the Committee on Administrative Tribunals and Inquiries (Cmnd. 218) (London:

HMSO, 1957), para. 269. Hereinafter “Franks Committee Report”.92 [1981] AC 75, 94. Hereinafter “Bushell case”.93 [1994] 4 All ER 352. Hereinafter “Greenpeace case”.94 Ibid., p. 381.95 [1984] JPL 871. Hereinafter “Binney case”

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properly taken into account.96

On the facts of the Greenpeace case, Potts J. surprisingly held that the above

criteria had been satisfied and the Secretary of State was entitled to consider a

local inquiry unnecessary given the consultations that had already taken place

and the information available to him.97

As Webster J. had pointed out in the Binney case, in matters of great public

controversy, no reasonable minister could be satisfied that he could weigh the

conflicting interests without the benefit of a public inquiry at which the groups in

conflict could confront each other, and at which witnesses and expert witnesses

could be heard and cross-examined.98

The only consultations carried out in the Greenpeace case seemed to be by

correspondence. Neither was there any indication that those who had

responded to the public consultation exercise or written to the Ministers

themselves had the opportunity to challenge the validity of each other’s

statements or the expert evidence. It is therefore not clear how Potts J. could

have concluded that the Secretary of State was entitled to take the view that the

large amount of information and argument available to them were adequate for

informing themselves of the weight and substance of the concerns of all

interested parties that information and argument.99

Although members of the public can expect that in the absence of prior public

consultation, a local inquiry relating to a proposed authorisation of radioactive

waste disposal is likely to be held, the mere fact that one is held does not ipso

facto confer on any particular individual a right to participate at the inquiry. The

96 Supra, p. 379.97 Ibid., p. 381.98 Supra, p. 874.99 It might be possible to explain his conclusion if one takes into account the fact that many of the

issues relating to the disposal of radioactive wastes arising from THORP had already been

considered in a public inquiry conducted by Sir Parker Roger in 1977 to consider the application

for planning permission for the THORP. Potts J. referred to this public inquiry in his judgement

(Supra, pp. 360-1), but there is no indication that he thought that this was relevant to the issue of

whether the Secretary of State’s decision not to hold a local inquiry was irrational.

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individual right to participate at an inquiry must therefore be independently

founded under statute or common law.

Common Law

Turning to common law, the judicial principle of procedural fairness requires,

inter alia, that in appropriate circumstances, individuals be given the opportunity

to be heard in decisions that directly affect their legitimate interests unless

statute expressly100 or by necessary implication provides otherwise.101 Lord

Bridge, for example, declared that

it is well established that when a statute has conferred on any body the power to make

decisions affecting individuals, the courts will not only require the procedure prescribed

by the statute to be followed, but will readily imply so much and no more to be introduced

by way of additional procedural safeguards as will ensure the attainment of fairness.102

Furthermore, in contrast with the court’s generally restrained approach to

supervision of administrative discretion, the court is the final arbiter of what

procedural fairness requires in a specific context.103 Thus, while a minister’s

decision to decline to hold a local inquiry under the 1993 Act can only

successfully challenged in court if the decision is Wednesbury unreasonable; it is

for the court to exercise its own judgement as to whether the procedure at such

inquiry meets the requirements of procedural fairness.

Historically, the principle of natural justice served to protect procedurally certain

legally recognised rights, e.g., life, liberty and property, and interests akin thereto

from being adversely threatened in judicial or quasi-judicial proceedings. With

the increase in the regulatory functions of the state in the nineteenth century, the

100 E.g., Town and Country Planning Act 1990, s. 35B(4) and Highways Act 1980, s. 258.101 I leave aside the rule against bias for now.102 Lloyd v. McMahon [1987] AC 625, 702-3. See also Cooper v. Wandsworth Board of Works

(1863) 14 CB (NS) 180, 195, where Byles J. held that “although there are no positive words in a

statute, requiring that the party shall be heard, yet the justice of the common law will supply the

omission of the legislature”.103 R. v. Panel of Take-overs and Mergers, ex p. Guinness plc [1989] 1 All ER 509, 532.

164

courts began to impose on government departments and ad hoc tribunals that

‘adjudicated’ on the rights and liberties of individuals,104 a duty to act judicially

according to court-like procedures. The superadded requirement of adjudication

or quasi-adjudication has been officially put to rest,105 resulting in a widening of

the scope of application of the principle. At about the same time, the duty to

observe natural justice evolved into a more general duty to act fairly.106 The

emergence of this more general duty has theoretically given the courts more

flexibility in tailoring the standards of procedural fairness to suit the

circumstances for each case, but has led to greater uncertainty in the

requirements of procedural fairness from case to case.

Although it has been said that the duty to act fairly applies whenever interests

are at stake,107 and that any official who decides anything has a duty to act

fairly,108 the application of this principle is far more restricted in reality. Clearly,

where property rights or personal liberty are threatened, there is a prima facie

right to be heard by the decision-maker. Procedural fairness can also be

applicable when certain interests are at stake. Thus, in addition to having a

statutory right to be heard in an appeal against an adverse decision by the

Environment Agency,109 AWE plc would probably have a right under common

law to be heard on its application before it is denied an authorisation to dispose

radioactive wastes or before being issued with an authorisation that is subject to

adverse limitations and conditions which could be construed as jeopardising its

economic interests in operating a nuclear site. Members of the public who can

show a direct link between the proposed decision and their economic interests,

health, enjoyment of property, or a loss of amenity, e.g., fishing in the rivers

where the discharges are to take place may be similarly entitled to an

opportunity to be heard, although the content of such an entitlement may vary

with the court’s perception of the importance of the interest at stake.

104 Liberally interpreted to include instances where important privileges were at stake.105 Ridge v. Baldwin [1964] AC 40.106 This general duty made its initial appearance in the judgement of Lord Parker CJ in Re H. K.

(An Infant) [1967] 2 QB 617, 30. See also O’Reilly v. Mackman [1983] 2 AC 237, 275, where

Lord Diplock said that the rules of natural justice “mean no more than the duty to act fairly”.107 Per Lord Diplock, Bushell case, supra, p. 95.108 Per Lord Loreburn, Board of Education v. Rice [1911] AC 179, 182.109 1993 Act, s. 26.

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There is weak and indirect authority to support the proposition that concern

about the potential harm arising from the discharge of radioactivity may give rise

to a sufficient interest to warrant a right to be heard, at least insofar as well-

resourced environmental groups are concerned.110 In R. v. Her Majesty’s

Inspector of Pollution & anor., ex p. Greenpeace Ltd. (No. 2),111 Greenpeace

claimed judicial review of a decision by HMIP to approve BNFL’s application for

a variation of its existing authorisations to enable it to test its new THORP. In

considering whether Greenpeace had established a sufficient interest for the

purpose of standing under s. 31(3) of the Supreme Court Act 1981, Otton J. took

into consideration the fact that Greenpeace

is a entirely responsible and respected body with a genuine concern for the environment.

That concern naturally leads to a bona fide interest in the activities carried out by BNFL at

Sellafield and in particular the discharge and disposal of radioactive waste from its

premises and to which the respondents’ decision to vary relates.112

The court also took into account the fact that 2500 Greenpeace supporters came

from the Cumbria region and that he could not ignore the fact that those

supporters were “inevitably concerned about (and have a genuine perception

that there is) a danger to their health and safety even from testing”.113

While the test of sufficiency of an interest for the purposes of standing in a claim

for judicial review is not identical to that for the purpose of triggering an

entitlement to procedural fairness in administrative decision-making, there is

arguably some overlap between the two. It has even been suggested that where

an applicant has been granted permission to proceed with a claim for judicial

review, it may be assumed that the impact of the decision is sufficiently serious

to qualify as adversely affecting his interests to warrant a right to be heard on the

decision.114 Whatever the merits of such an approach, it does not appear to

110 Greenpeace (No. 2) case, infra, p. 350.111 [1994] 4 All ER 329. Hereinafter “Greenpeace (No. 2) case”.112 Supra, p. 350.113 Ibid., loc. cit.. Emphasis mine.114 Woolf, H., Jowell, J., and Le Seur, A. P., De Smith, Woolf and Jowell’s Principles of Judicial

Review (London: Sweet & Maxwell, 1999), p. 290, fn. 66.

166

reflect the current position. As pointed out by Craig, standing to claim judicial

review is and should be wider than the right to be consulted in administrative

proceedings; there may be instances where it may be necessary to allow, in the

public interest, a member of the public to challenge the legality of a decision

without necessarily entitling him to be consulted when the decision was made.115

The case for an entitlement to be heard in respect of environmental decisions on

the grounds that it may adversely affect the interests of future generations is

even weaker since only the person who is potentially affected has a right to be

heard before the decision is made. Any concern for future generations is likely

to have to be couched in terms of concern about the effect of the decision on

self-interest to warrant an entitlement to be heard.

Arguing for a right to be heard during environmental decision-making irrespective

of any potential effect on one’s interests has arguably been made easier since

Lord Hoffman’s acknowledgement in Berkeley v. Secretary of State for the

Environment & Ors. that the citizen has a right during an environmental impact

assessment to an inclusive and democratic procedure in which the public,

however misguided or wrongheaded its views, should be given an opportunity to

express its opinion on the environmental issues.116 While Lord Hoffman’s

comments, strictly construed, applies only to environmental decisions to which

the environmental impact assessment regime applies, they may represent a

gradual judicial acceptance that irrespective of whether their personal or property

115 Craig, P. P., Administrative Law (4th edition) (London: Sweet and Maxwell, 1999), p. 716.116 [2000] 3 WLR 420, 430. Hereinafter “Berkeley case”. It seems that Lord Hoffman very much

had in mind the contribution of public participation to the legitimacy of the decision rather than its

contribution to more competent environmental decisions. Contra Steele’s reading of the case

where she argues that what Lord Hoffman probable meant was that the public has a right to be

involved regardless of whether the decision-maker believes that the citizen will be able to add

anything of value (See Steele, J., supra, p. 420). This dicta in this case may be contrasted with

that of Brooke LJ in R.v Durham County Council & ors, ex p. Huddleston [2000] 1 WLR 1484,

para. 38, to the effect that one of the aims of the environmental impact assessment (and for the

State to make certain information available) was to give the public concerned the opportunity to

“express a properly informed opinion” before consent for the project was given or withheld,

suggesting a concern with the contribution of public participation to the substantive quality of

outcomes.

167

rights are at stake, members of the public have a general legitimate interest in

environmental issues that may entitle them to an opportunity to be included in

the deliberation of environmental decisions even if their private interest is not

affected by these decisions.

Finally, even assuming that an individual is not entitled at the outset to be

consulted in respect of a proposed environmental decision, the courts may still

recognise such an entitlement in common law if he can show that he has

legitimate expectations to be consulted on the basis of general or particular

representations or the existing practice of the decision-maker.117 Therefore, to

the extent that an argument can be made out that it has been the practice or

declared policy of the Environment Agency,118 or its predecessor, HMIP,119 to

consult the public on proposed decisions to authorise the discharge of

radioactive wastes, a member of the public could claim a legitimate expectation

to be consulted for this reason.

European Convention for the Protection of Human Rights and

Fundamental Freedoms

The entitlement to be heard at common law is in some ways reinforced by the

right to a fair hearing under Article 6(1) of the European Convention on Human

Rights and Fundamental Freedoms,120 now part of domestic English law with the

coming into force of the 1998 Act. This Article provides that

117 See for example, R. v. Secretary of State for Transport, ex p. London Borough of Richmond

upon Thames [1995] Env LR 390, 401.118 See for example, Environment Agency, AWE Consultation Document, supra, para. 1.8.3.119 For example, HMIP had consulted the public in respect of BNFL’s application for new

authorisations in respect of the Sellafield nuclear site to take account of the review of their

existing operations and to include the proposed operation of THORP and the enhanced actinide

removal plant. See the Greenpeace (No. 2) case, supra, p. 334. Tromans and Fitzgerald also

suggest that HMIP followed a practice of allowing a period of public consultations on applications

for authorisation to dispose radioactive wastes (See Tromans, S., and Fitzgerald, J., The Law of

Nuclear Installations and Radioactive Substances (London: Sweet and Maxwell, 1997), pp. 238-

9.

168

In the determination of his civil rights and obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law…

The reference to “civil rights and obligations” has been interpreted by the

European Court of Human Rights to include private (as opposed to public) rights

and obligations designated as such by domestic law;121 it also applies to

proceedings that are of a public law character if these proceedings are decisive

of civil rights and obligations.122 It has been held that the applicant for a licence

to carry out industrial activities would be having his civil rights and obligations

determined, and would therefore be entitled to a fair and public hearing.123 In

similar vein, the Court has also held that the Article applies to a decision to

revoke a person’s tipping licence.124

Third parties whose civil rights and obligations are determined by the grant of

licences are also entitled to procedural protection under Article 6(1). In Zander

v. Sweden,125 the Court found that the parties could arguably maintain that they

were entitled under Swedish law to protection against the water in their well-

being polluted as a result of the company’s activities on the tip.126 This right

directly concerned with the applicants’ ability to use the water in their well for

drinking purposes and was one facet of their civil right as owners of the land on

which it was situated.127 The licensing board and the third parties disagreed as

to whether the activities on the dump that were licensed by the board were likely

to cause pollution on the well and whether precautionary measures requested by

the third parties were unreasonable, and the outcome of this disagreement was

directly decisive of the third parties’ right to protection against pollution of their

120 Hereinafter “ECHR”.121 Ringeisen v. Austria (No. 1) (1979-80) 1 EHRR 455, para. 94; and König v. Germany (No. 1)

(1979-80) 2 EHRR 170, paras. 94-5.122 Ringeisen v. Austria (No. 1), ibid..123 Benthem v. The Netherlands (1986) 8 EHRR 1, para. 36.124 Fischer v. Austria (1995) 20 EHRR 349.125 (1994) 18 EHRR 175. Hereinafter “Zander case”.126 Ibid., para. 24.127 Ibid., para. 27.

169

well.128 As such, the inability of third parties to challenge the decision of the

board to allow the licence holder to expand its dump activities was incompatible

with Article 6(1).129

Applying the reasoning in the Zander case, the European Commission of Human

Rights held in Greenpeace Schweiz & Ors. v. Switzerland130 that applicants who

were living within “Emergency Zone I” surrounding a nuclear power plant were

entitled under Swiss law to file objections to the contested decision, and

therefore entitled under Swiss law to protection against the effects of the nuclear

plant, particularly in relation to their civil right to use their property within

Emergency Zone I as proprietors and tenants.131 Applicants living elsewhere, on

the other hand, were not similarly protected under Swiss law. As such, while the

claims of applicants living within Emergency Zone 1 under Article 6(1) were

admissible, the claims of those living elsewhere were not.

The starting premise for the present regime for radiation protection is that

exposure to radioactivity, no matter how low the dose, raises the risk of cancer

and other hereditary defects in each individual in the exposed population. In the

UK, there does not appear to be any right to be free from all risk of harm arising

from exposure to man-made radiation - although a nuclear site licensee is under

a duty to secure that no ionising radiations emitted during the period of the

licensee’s responsibility from any waste discharged on or from the site cause

injury to any person or damage to any property of any person other than the

licensee,132 the English courts have rejected the argument that this confers a

right to be absolutely free from contamination or risk of harm per se arising from

ionising radiation.133 Neither is a person who may be exposed to radioactive

waste entitled under domestic law to be consulted prior to the authorisation of

the disposal.

128 Ibid., para. 25.129 Ibid., para. 29.130 (1997) 23 EHRR CD 116. Hereinafter “Greenpeace Schweiz case”.131 Ibid., pp. 118-9.132 Nuclear Installations Act 1965, s. 7(1).133 Re Friends of the Earth [1988] JPL 93; and Merlin v. British Nuclear Fuels plc [1990] 2 QB

557, 572.

170

This absence of a substantive or procedural right to be free from risk of harm

poses difficulties for those claiming a right to a fair hearing where a proposed

decision imposes a low statistical probability of harm to each individual in a large

affected population. In Balmer-Schafroth & Ors. v. Switzerland,134 the applicants

owned or rented homes in villages that were between four and five kilometres

from a nuclear power station.135 The company operating the power station had

applied to the Swiss Federal Council for an extension of its operating licence and

for permission to increase its production.136 The applicants filed their objections,

supported by several expert opinions, arguing that the power station did not

meet current safety standards on account of serious and irremediable

construction defects and that, owing to its condition, the risk of an accident

occurring was greater than usual and posed a risk to their physical integrity.137

The Federal Council dismissed all objections as unfounded and extended the

operating licence and permitted the increase in production.138 The applicants

claimed that Article 6(1) of the ECHR had been breached because they had not

had access to a tribunal within the meaning of that provision and that the

procedure followed by the Federal Council had not been fair.139

The majority judgement of the European Court of Human Rights held that Article

6(1) of the ECHR was not violated in the circumstances. The right on which the

applicants relied in substance was the right to have their physical integrity

adequately protected from the use of nuclear energy.140 While this right was

recognised under Swiss law,141 the link between the Federal Council's decision

and the applicants' right to adequate protection of their physical integrity was too

tenuous and remote for Article 6(1) to be applicable. Regardless of the power

station’s failure to meet current safety standards, or the unusually greater risk,

the applicants had failed to show that “the operation of the power station

134 (1998) 25 EHRR 598. Hereinafter “Balmer-Schafroth case”.135 Ibid., para. 7.136 Ibid., para. 8.137 Ibid., para. 9.138 Ibid., para. 11.139 Ibid., para. 20140 Ibid., para. 33.141 Ibid., para. 34.

171

exposed them personally to a danger that was not only serious but also specific

and, above all, imminent”.142 The effects on the population of the measures that

the Federal Council could have ordered to be taken in the instant case therefore

remained hypothetical; it had not been established with a sufficient degree of

probability that the outcome of the proceedings were directly decisive of the

applicants’ right.143

Ultimately, the majority judgement rested on the consideration that the

probability of the applicants’ individual substantive right under Swiss law being

affected was too low to attract the application of Article 6(1) of the ECHR. It was

this threshold level of probability rather than the principle per se that the

dissenting judges objected to when they pointed out that

[f]or Article 6 to be applicable, an applicant does not need to prove at the outset that a risk

exists or what its consequences are; it suffices if the dispute is genuine and serious and

there is a likelihood of risk and damage. It may suffice for finding a violation that there is

proof of a link and of the potential danger…144

Nevertheless, the reasoning of the majority judgement in the Balmer-Schafroth

case has subsequently been confirmed and followed in Athanassoglou & Ors. v.

Switzerland,145 a case with virtually identical facts.

Just as in common law, participation in decision-making under Article 6(1) of the

ECHR is very much oriented towards the procedural protection of narrow self-

interest rather than common interest. Under Articles 33 and 34 of the ECHR,

only contracting Sates and “victims” can complain to the European Court of

Human Rights about alleged violations of the Convention. The Convention does

not preclude non-governmental groups from being “victims” of violations of the

Convention rights, but like all other “victims”, such groups have to establish that

its own rights have been violated; it is not enough to show that its members’

rights or its objects have been affected, let alone the rights of non-members or

those of future generations. This restriction prevented environmental groups

142 Ibid., para. 40.143 Ibid., loc. cit..144 Ibid., p. 618.145 (2001) 31 EHRR 13, para. 55.

172

from successfully complaining of a breach of Article 6(1) in the Greenpeace

Schweiz case.146 In that case, the applicants were a number of associations and

individuals where the Commission held that the complaints of the environmental

groups were inadmissible because they had “failed to indicate whether they own,

or lease, property, within the vicinity of the nuclear power plant”.147

Aarhus Convention

The positions of the ‘unaffected’ but interested individual in common law and

under the ECHR in respect of participation in environmental decision-making

may be contrasted with that under the Aarhus Convention.

The right to participate in environmental decision-making is conferred on “the

public concerned”, defined in the Aarhus Convention as “the public affected or

likely to be affected by, or having an interest in, the environmental decision-

making…”.148 The definition clearly contemplates that members of the public

may be interested in without being affected by certain proposed environmental

decisions, and that both affected and interested members of public should be

entitled to notification of and participation in environmental decision-making.

Furthermore, environmental non-governmental groups are deemed to have an

interest in proposed environmental decisions and therefore like other interested

but nor necessarily affected members of the public, are entitled to participate in

the decision-making.

Even if Article 6 had been transposed to English law, it would only have been

applicable to the AWE, Magnox, and Sellafield Decisions if these had been

decisions on proposed activities and reviews of ongoing activities listed in Annex

I of the Convention; or if these decisions could have a significant effect on the

environment.149 It is plain that the discharge of radioactive waste per se is not

146 Supra.147 Ibid., p. 1119.148 Art. 2, para. 5.149 Art. 6, paras. 1(a), 1(b) and 10.

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an activity listed in Annex I of the Convention.150 Decisions whether to authorise

the disposal of radioactive wastes are not decisions about permitting nuclear

power stations or other nuclear reactors, including the dismantling or the

decommissioning of such power stations or reactors, or other nuclear

installations.151

Neither do these decisions relate to an activity where public participation is

provided for under an environmental impact procedure in accordance with

national legislation.152 Potts J. had held in the Greenpeace case that for the

purpose of considering whether EC Directive 85/337 was applicable, the

construction of THORP, its subsequent operation and consequent discharges

were considered a single project predating the Directive. As such, the

discharges did not separately require an environmental assessment even though

it took place after the Directive had come into force.153 Thus, for the purpose of

environmental impact assessment legislation, the discharge of radioactive

wastes arising from the various activities are considered part of the approval for

the construction154 or, as the case may be, decommissioning155 of the facilities

on which the activities are being carried out rather than to the authorisation of

the consequent discharge of radioactive wastes arising from the implementation

of these activities. Thus, the Aarhus Convention, when transposed into English

law, would still probably not apply to the authorisation of disposal of radioactive

waste arising from activities permitted prior to the coming into force of

environmental impact assessment legislation.

The proposed decisions would also not have significant effects on the

environment as long as discharges were kept within the authorised limits … or

so the Environment Agency has concluded. In the AWE Decision, its

assessment relied substantially on data extrapolated from the radiation

150 Art. 6, para. 1(a).151 Annex I, para. 1.152 Annex I, para. 20.153 Supra, pp. 376-7.154 For example, Town and Country Planning (Environmental Impact Assessment) (England and

Wales) Regulations 1999, SI 1999/293.155 For example, Nuclear Reactors (Environmental Impact Assessment for Decommissioning)

Regulations 1999, SI1999/2892.

174

assessments using models developed by observing the health effects on human

populations exposed to radioactivity in different circumstances.156 At the same

time, the Agency acknowledged that “limited research has been carried out to

date in this field”.157 Subsequently in the Magnox Decision, the Environment

Agency continued to rely on these models despite acknowledging their

inadequacy, adding that it was in the process of developing a more systematic

approach to radiological protection for wildlife.158 On the basis of these

admittedly inadequate models and other limited studies, it concluded, despite

representations from English Nature to the contrary,159 that the radioactive and

non-radioactive discharges from the magnox power station sites and the

Berkeley Centre would not have any adverse effects on the integrity of

designated conservation sites.160 The Agency only finally abandoned the use of

the model when it came to the Sellafield Decision. Only then, did the Agency

decide that the recommendation of the International Commission on Radiological

Protection161 that what was a safe dose for humans was also a safe dose for

flora and fauna was unacceptable.162

On the whole, the Environment Agency’s conclusion about the absence of

significant adverse environmental impacts from the disposal of radioactive waste

stems more from the lack of evidence of environmental harm than from evidence

of the absence of environmental harm. This presumption against the existence

of harm can be criticised. Notwithstanding the fact that the question of whether

any particular development is likely to have significant environmental effects is a

matter for the decision-making authority, subject only to Wednesbury

156 Environment Agency, AWE Decision Document, paras. 4.5.5, 4.5.8 and 4.6.4.157 Ibid., paras. 4.6.3 and 4.6.8.158 Environment Agency, Magnox Decision Document, supra, paras. PA.67 and P6A.70.159 Ibid., para. P6A.92.160 Ibid., para. 6A.95.161 Hereinafter “ICRP”. The Commission was set up by the International Society of Radiology, a

body of professional bio-radiologists. It offers recommendations to regulatory and advisory

agencies and provides advice to management and professional staff with responsibilities for

radiological protection. The Commission elects its own members under rules that are subject to

the approval of the Society.162 Environment Agency, Sellafield Consultation Document, supra, Appendix 8, para. A8.8.

175

challenge,163 the European Court of Justice held in World Wildlife Fund & Ors. v.

Autonome Provinz Bozen & Ors.,164 that a member state could not undermine

the objective of EC Directive 85/337/EEC by excluding from the assessment

procedure a specific project, as not being likely to have significant effects on the

environment unless the specific project excluded could, on the basis of a

comprehensive assessment, be regarded as not being likely to have such

effect.165 A summary conclusion by the Agency that it was satisfied, on the basis

of modelling evidence extrapolated from data of questionable relevance, that the

proposed discharges of radioactive wastes would have no significant effect on

the environment could hardly be said to have been reached on the basis of

comprehensive assessment.

Contracting states will not be under the same strict legal obligation to provide for

public participation for all forms of environmental decision-making. Thus, under

Article 6, the public must be given opportunities to participate in decisions

relating to permission for proposed specific activities that have “significant effects

on the environment”. The obligation to provide for public participation is

considerably more exhortatory in tone in respect of plans, programmes or

policies. Article 7 vaguely obliges states to make “appropriate practical and/or

other provisions for the public to participate during the preparation of plans and

programmes relating to the environment, within a transparent and fair

framework…”.166 As for plans, programmes or policies that do not relate to the

environment but affect the environment, contracting states are only required to

“endeavour to provide opportunities for public participation” in their preparation.

The same exhortatory tone is found in Article 8, which requires contracting states

to “strive to promote effective public participation at an appropriate stage, in

respect of the preparation of executive regulations and other legally binding rules

that may have a significant effect on the environment.

163 R. v. Swale Borough Council & anor., ex p. Royal Society for the Protection of Birds [1991]

JPL 39, 47.164 Case C-435/97, [1999] ECR I-5613.165 Ibid., para. 45.166 Emphasis mine.

176

Thus, it would appear while public participation in respect of decisions on

specific activities is a requirement under the Aarhus Convention; participation

may be restricted or even excluded in respect of strategic decisions that

dominate the decisions on specific activities. This is particularly the case in

respect of plans and programmes that are not related to the environment as

such, but affect the environment nevertheless. The discretion to restrict or

exclude participation in such plans and programmes would be a significant

limitation on the scope of participation in the regulation of disposal of radioactive

wastes, where the final decision would be strongly influenced by policies such as

the decommissioning of nuclear facilities, defence or energy production.

Environment Agency Practice

The Environment Agency clearly went beyond existing legal requirements in

respect of the scope of participants invited to participate in the decisions. It

extended its consultation to the public, as well as to a number of national and

local governmental and non-governmental organisations in respect of its

proposed decisions, regardless of whether the invitees had any legal right or

interest at stake.167 The Agency invited written representations, and held public

surgeries168 and public meetings. Much was also done to publicise the start of

consultation on the proposed decisions including placement of advertisements

and notices in national and local newspapers. News releases were also issued

and further publicity of the consultation was given through coverage of interviews

with Agency staff in the local media. Posters were also placed in local shops

167 See Environment Agency, AWE Decision Document, supra, Appendix 1; Environment

Agency, Magnox Decision Document, supra, Appendix 2; and Environment Agency, Sellafield

Consultation Document, supra, Annex 1 for the list of statutory consultees and interested parties

invited to comment on the proposed decisions.168 Public surgeries are one-to-one walk-in meetings between members of public and Agency

staff where individuals can obtain information as well as convey their views on proposed

decisions. They are an alternative to written consultations and public meetings, for those who

prefer face-to-face meetings but may feel uncomfortable or intimidated to speak at a public

forum. Public surgeries also allow more time to be devoted for specific questions to be

addressed in greater detail (see Environment Agency, Magnox Decision Document, supra,

paras. 5.29 and 5.59).

177

and post offices, and local MPs were notified.169 In respect of the consultation

documents, these were sent out to specific organisations and interested parties,

and also made available for viewing at specified local authority offices, Agency

offices, and public libraries.170 The documents were also made available for

viewing and downloading at the Agency’s website; and sent free of charge to

members of the public on request. At the end of the consultation period for the

AWE Decision, the Agency received over 4000 responses to the consultation,171

of which 3874 letters and post cards came from individual members of the

public.172

The Agency also held public meetings at Newbury, Tadley, and Reading in July

and September 1998.173 The aim of these initial public meetings was primarily

for the applicant to explain the application and for the public to “listen,

understand and express comments or concerns” and the Agency to outline the

consultation process and explain its role, including the relevant factors that it

could take into account.174 Subsequent public meetings were held at

Pangbourne and Tadley in October 1999 so that the Agency could explain to

local members of the public how the key issues had been addressed in the

proposed decision and for the public to raise any areas of concern that they felt

the Agency had not addressed.175 These meetings were not intended to be a

forum for challenging the validity of opposing views or evidence. Neither were

any local inquiries held for this purpose.176

The consultation period for the Magnox Decision was initially intended to be

three months, but was extended by three months when BNFL announced its

169 See for example, Environment Agency, Magnox Decision Document, supra, para. P.52; and

Scope and Methodology Response Document, supra, para. 3.3.2.170 See Environment Agency, AWE Consultation Document, supra, Appendix 2; and Environment

Agency, Sellafield Consultation Document, supra, Annex 2, for the list of locations.171 Environment Agency, AWE Decision Document, supra, para. 3.1.3.172 Ibid., Appendix 2.173 Ibid., para. 1.7.3.174 Environment Agency, Proposals for EPC, supra, para. 3.7.175 Environment Agency, AWE Decision Document, supra, para. 1.7.8; and Proposals for EPC,

ibid., para. 3.14.176 See below.

178

intention just before the start of consultation to cease operation at Hinkley Point

A power station.177 The consultation period was extended again, this time by

four months, following representations from members of the public in the vicinity

of Bradwell who expressed concern about incineration of radioactive waste at

that site.178 In all, the Agency received 2790 consultation responses in respect

of the Magnox Decision.179 The Agency also organised public meetings and

surgeries in the vicinity of each site and attended meetings organised by other

interested groups.180 The Agency published its proposed decision issued in

August 2001 and forwarded to the Secretaries of State, the document as well as

requests from some of the respondents for a local inquiry to be held in respect of

the decision.181 To date, the Secretaries of State have not indicated whether any

local inquiry will be held.

In respect of the Sellafield Decision, the Environment Agency consulted

interested parties and the public for eight weeks182 on the scope and

methodology for the re-examination of the Sellafield authorisations for the

disposal of radioactive waste and four months183 on the proposals arising from

the re-examination proper. It also held walk-in surgeries in Cumbria at Gosforth

and Whitehaven to enable the local population to discuss the scope and

methodology of the review on a one-to-one basis with Agency staff.184 Once

again, there seems to be a lack of opportunity to contradict or test the validity of

the facts or values held by the Agency or other participants. As events are still

unfolding, it is not known if the Secretary of State will eventually direct that a

local inquiry be held.

177 Environment Agency, Magnox Decision Document, supra, para. 1.12.178 Ibid., loc. cit..179 Ibid., para. 1.13.180 Ibid., para. 1.11.181 Ibid., para. 1.19.182 Environment Agency, Sellafield Scope and Methodology Consultation Document, supra, p.

24.183 Environment Agency, Sellafield Consultation Document, supra, para. 2.10.184 Environment Agency, Sellafield Scope and Methodology Response Document, supra, para.

2.3.

179

Local Inquiry

In the AWE Decision, the Secretaries of State for the Department of the

Environment, Transport and the Regions; and for Health also decided not to hold

a local inquiry.185 They considered that the fact that “Atomic Weapons

Establishments are a facility with a high profile nationally, and a significant focus

for those opposed to the UK's nuclear defence capability and policies” was not

an automatic reason for them to intervene.186 A local inquiry was not necessary

in view of the

lengthy process of consideration of these applications adopted by the Environment

Agency, and the variety of opportunities for public participation in it, with several public

meetings at each significant stage in the Agency's deliberations.187

In view of the extensive public consultation that had already taken place on the

Magnox and Sellafield Decisions, albeit mainly in the form of written

representation, and judging from the Ministers’ reasons for not holding a local

inquiry decision in the AWE Decision, it seems unlikely that any local inquiry will

be held in respect of the decision.

The fact that the Environment Agency adopted a lengthy process of consultation

should have been irrelevant to the question of whether to hold a local inquiry;

Potts J. had held in the Greenpeace case that the delay and the consequent

financial implications a hearing or inquiry would entail and the consequent

financial implications was an irrelevant consideration in that case.188 What was

more pertinent was the nature of the consultation that took place in the process.

The three-month public consultation was largely based on written

representations, so respondents would not have had the opportunity to confront

185 Department of the Environment, Transport and the Regions, Minister's Decision on

Applications by AWE plc for Authorisation to Dispose of Radioactive Waste from the Atomic

Weapons Establishments at Aldermaston and Burghfield, and Authorisation issued by The

E n v i r o n m e n t A g e n c y . As at 10 July 2001, accessib le onl ine at

http://www.defra.gov.uk/environment/radioactivity/waste/awe/index.htm.186 Ibid., para. 42.187 Ibid., para. 17.188 Supra, p. 382.

180

other respondents or experts. Nevertheless, despite these shortcomings, it is

likely that a decision not to hold a local inquiry in the circumstances will, following

the Greenpeace case, be upheld by the courts.

The Environment Agency’s consultation process falls short of the requirement in

the Aarhus Convention that contracting states enable public participation in

environmental decision-making “without discrimination as to citizenship,

nationality or domicile”.189 Contrary to this requirement, the Agency consulted all

UK local authorities bordering the Irish Sea in respect of the Sellafield Decision,

but omitted to consult their Irish counterparts, taking the view that the 1993 Act

did not require consultation with local bodies outside the UK, and that

consultation outside the UK was a matter for the government. Opportunities for

the Irish public to participate in the Sellafield Decision were thus only tenuously

made available through the government of the Irish Republic via the Foreign and

Commonwealth Office, and more generally through the Agency’s website.190

(B) Agenda and Rules


The 1993 Act does not prescribe any particular mode of consultation for statutory

consultees, but as Sachs LJ pointed out in Sinfield & Ors. v. London Transport

Executive, “any right to be consulted … should be implemented by giving those

who have the right an opportunity to be heard at the formative stage of proposals

before the mind of the executive becomes unduly fixed … it would seem

essential to [the consultees] that such consultation should be on a broad basis

so as to enable them to deal with any important question that touched either their

interests or those who lived in their area”.191

189 Aarhus Convention, supra, Art. 3 para. 9.190 Environment Agency, Sellafield Scope and Methodology Response Document, supra, paras.

3.2.1 and 3.2.2.191 [1970] 2 All ER 264, 269. Emphasis mine.

181

Insofar as the agenda for consultation is concerned however, there is a legal

limit to the scope of issues that the Agency can consider regardless of the logical

relevance of such issues to the Agency’s decisions. Thus, in the AWE Decision,

issues relating to the deployment of the Trident nuclear weapon system went

beyond the scope of issues the Environment Agency could legally consider. As

such, the Agency did not respond to comments on the legitimacy or the

environmental impact of the deployment and use of these weapons. Comments

were instead forwarded to the then Secretary of State for the Environment and

the then Minister for Agriculture, Fisheries and Food for their consideration.192

Similarly, in the Magnox Decision the Agency considered that the policy on

nuclear power and on renewable sources of energy and energy conservation

were matters for the government.193 In the Sellafield Decision, the Agency

proceeded on the assumption that the reprocessing of spent fuel was a

necessity.194

Such a dis-integrated approach to environmental decision-making, reinforced by

the legal framework, whereby the question of radioactive waste disposal is

separately considered from the continuing need for the activity that produces the

waste, is a necessary evil in a centralised administration charged with the

introduction of large-scale technological solutions to improve resource

productivity. Pursuant to ministerial guidance issued under s. 4(2) of the 1995

Act, to which the Environment Agency must have regard in discharging its

functions, it is for the government to maintain and develop a policy and

regulatory framework which, inter alia, ensure that radioactive wastes are not

unnecessarily created, and the Agency’s duty to ensure that such a framework is

properly implemented in accordance with its statutory powers. The government

had affirmed in its White Paper, the Strategic Defence Review,195 and its

commitment to an independent nuclear deterrent by arming nuclear submarines

with Trident nuclear missiles.196 As Turner J. pointed out in deciding that the

192 Environment Agency, AWE Decision Document, supra, para. 4.11.2.193 Environment Agency, Magnox Decision Document, supra, paras. 6A.2 and 6A.3.194 Environment Agency, Sellafield Scope and Methodology Consultation Document, supra, para.

3.6.195 Ministry of Defence, Strategic Defence Review (Cm 3999) (London: HMSO, 1998).196 Environment Agency, AWE Consultation Document, supra, para. 1.2.1.

182

Agency had, in respect of the AWE Decision, properly declined to question the

merits of deploying Trident missiles as a nuclear deterrent,

the [Agency] had no powers, nor yet did it purport to exercise any, in respect of the

production of Trident, its storage or the accumulation of radioactive material. Its functions

were solely concerned with the conditions under which radioactive waste discharges

should be permitted. It is also notable that the decision with which this litigation is

concerned neither authorised the design and manufacture nor the decommissioning of

Trident. Its sole purpose was to authorise the release of radioactive wastes…197

Local Inquiry

The Environment Agency’s legal impotence to consider all relevant factors

outside its legal powers to regulate the disposal of radioactive wastes would

have been one reason for the Secretary of State to call-in applications relating

thereto and where necessary cause a local inquiry to be held under s. 24 of the

1993 Act. If the purposes of holding an inquiry are to assist the minister in

weighing conflicting issues and to satisfy the requirements of procedural

fairness, both the minister (and his inspector) and representors should have had

a role to play in setting the agenda of the inquiry. A majority of the House of

Lords held in the Bushell case, however, that representors at a local inquiry are

only entitled to make representations about local and private interests; the

decision-maker is entitled to exclude from debate at the inquiry, the merits of

government policy purportedly made in the public interest. In that case, the

Secretary of State had set up an inquiry to look into proposed schemes to

authorise the construction of two sections of a motorway. The selection of the

exact route to be followed through a particular locality by a motorway was

considered a particular application of policy and therefore an appropriate subject

for full investigation at a local inquiry because “it affects particular local interests

only and normally does not affect the interests of any wider section of the

public…”, but the merits of the underlying policy to construct a nationwide

network of motorways, and the ordering of the stretches of motorway to be

constructed were considered more appropriate for debate in Parliament, to

197 R. v. Environment Agency, ex p. Marchiori & NAG Ltd, supra, para. 47. The decision has

been upheld on appeal in Emanuela Marchiori v. Environment Agency [2002] EWCA Civ 3.

183

whom the minister was answerable.198 The court endorsed199 the Franks

Committee’s argument that the ministerial power to exclude the discussion of

policy in local inquiries “avoids useless discussion of policy in the wrong

forum”.200

The House of Lords did not stop there. They held that the propriety or otherwise

of the technical methodology or data adopted internally by a department to arrive

at policy decisions could also be excluded by the Secretary of State from debate

at the inquiry.201 Like the underlying motorway policy itself, the methods and

assumptions used by the government in formulating these policies were

considered an essential element of policy and unsuitable for investigation at

individual local inquiries by an inspector whose consideration of the matter was

necessarily limited by the material that happened to be presented to him at the

particular inquiry he was holding.202 Furthermore, it was considered that “no one

who is not an expert in this esoteric subject could form a useful judgement as to

its merits”;203 and that such technical issues were better monitored by an

independent standing advisory committee.204

The Bushell case not only shows that the fact/policy dichotomy continues to be

relevant in relation to the agenda at a local inquiry, it is also relevant in respect of

the procedure to be followed at such an inquiry. As Lord Diplock explained, in

the absence of any statutory rules governing the procedure to be followed in a

198 Supra, p. 98.199 Ibid., pp. 105-6.200 Franks Committee Report, supra, para. 288.201 Bushell case, supra, p. 100. Contra the dissenting judgement of Lord Edmund-Davies at pp.

114-5. He accepted that matters of policy could and should be excluded from a local inquiry, but

citing the Franks Committee Report, supra, para. 316, he disagreed that matters of fact and

expertise should likewise be excluded.202 Ibid., pp. 100-1. No account seemed to have been taken of the fact that the local inquiry was

the only forum available to these objectors to challenge the department’s underlying premise that

there was a need for the proposed motorway. To hold that the local inquiry was an inappropriate

forum for national policy when no other forum was available to the public (p. 106) effectively

denies members of the public any right to participate in the deliberation of policy issues except

tenuously through their parliamentary representatives.203 Per Lord Diplock, ibid., p. 99.204 Per Viscount Dilhorne, ibid., pp. 110-1.

184

local inquiry, the procedure is necessarily left to the discretion of the minister or

the person appointed by him to hold the inquiry on his behalf, so long as the

procedure adopted qualifies to be described as a local inquiry, i.e., an inquiry

held in public in the locality of the works that are the subject of the proposed

decision to hear the objections of the local authorities and private persons in the

vicinity whose interests may be adversely affected by the decision that will follow

the inquiry. The procedure must also be fair (in common law terms) to all those

who have an interest in the decision that will follow it whether or not they have

been represented at the inquiry.205 This does not mean that all who are

interested should be entitled to participate at the inquiry, only that the procedure

to be applied for those who are entitled to participate should take into account

the interests of those who cannot or do not participate at the inquiry. In

particular, the more policy oriented the issue, the more likely it is that a wider

public will have an interest in the decision, and accordingly, the less appropriate

it is to assess the procedural fairness of the inquiry in terms of the adversarial

procedure of the courts.

Common Law

The approach adopted in the Bushell case illustrates the application of the more

flexible approach to procedural fairness since the House of Lords in Ridge v.

Baldwin206 reinstated the principle that the duty to act in accordance with the

rules of natural justice was not restricted to administrative decisions of a judicial

or quasi-judicial nature; but also applied more generally to protect people whose

legal rights or interests were affected by an administrative decision.

The judicial classification of administrative decisions as judicial, quasi-judicial,

and administrative had allowed the courts to limit their imposition of an

adversarial model of procedural fairness to administrative functions akin to those

of a court of law adjudicating upon a lis inter partes.207 The extension of the

scope of procedural fairness to non-adjudicative forms of administrative

205 Ibid., pp. 94-6.206 Supra.207 See for example, R. v. Local Government Board, ex p. Arlidge, [1915] AC 120.

185

decision-making requires greater flexibility in the standard of procedural fairness

to suit different types of administrative functions. This is reflected in the change

in terminology from the “natural justice” traditionally associated with judicial

decision-making, to a more generic “procedural fairness”.208 The essence of the

concept of procedural fairness is clear – a person affected by a decision should

have a reasonable opportunity to present his case209; or as Lord Russell puts it,

“a fair crack of the whip”210 - but the application of the concept in individual cases

is somewhat intuitive,211 and influenced by a multitude of factors. As Lord Bridge

explained,

what the requirements of fairness demand when any body, domestic, administrative or

judicial, has to make a decision which will affect the rights of individuals depends on the

character of the decision-making body, the kind of decision it has to make and the

statutory or other framework in which it operates.212

Having extended procedural fairness to a wider range of administrative

decisions, the courts are now faced with the dilemma of choosing between213

fitting all forms of administrative decision-making into an adversarial model on a

sliding scale, a case of “squaring the circle”214 by incorporating to varying

degrees features of the adversarial model; or more radically, adopting alternative

benchmarks for the review of non-adversarial forms of decision-making,215

something courts are ill-suited to do.216

208 Re HK (An Infant), supra.209 Per Tucker LJ, Russell v. Duke of Norfolk [1949] 1 All ER 109, 118.210 Per Lord Russell, Fairmount Investments Ltd v. Secretary of State for the Environment [1976]

2 All ER 865, 874.211 Per Lord Mustill, Doody v. Secretary of State for the Home Department [1993] 3 All ER 92,

107.212 Lloyd v. McMahon, supra, p. 702.213 Loughlin, M., “Procedural Fairness: a Study of the Crisis in Administrative Law Theory” (1978)

University of Toronto Law Journal 28: 215.214 Harlow, C., and Rawlings, R., Law and Administration (2nd edition) (London: Butterworths,

1997), p. 404. For a description of the limits of the adjudicative model as a decisional process,

see Fuller, L., “The Forms and Limits of Adjudication” (1978) Harvard Law Review 92: 353.215 Such as citizen juries.216 Macdonald argued that the courts did not have sufficient ability to review all sorts of

administrative processes for procedural fairness and the that the task should be left to a multi-

member panel staffed by legally and non-legally trained personnel. See Macdonald, R. A.,

186

The Bushell case demonstrates the judicial preference for squaring the circle.

There, Lord Diplock considered that the inquiry had to be fair to everyone who

had an interest in the decision that would follow it whether they had been

represented at the inquiry or not, thereby recognising that an adversarial model

of procedural fairness was inappropriate.217 Yet, the procedural fairness of the

inquiry was assessed only against criteria more appropriate for the adversarial

model. Thus, while he accepted that objectors were to be allowed to

communicate their objections to the proposed scheme and be given sufficient

information about the reasons justifying the scheme to enable them to challenge

the accuracy of the facts and the validity of the arguments on which the

proposed decision was based,218 he denied them a right to cross-examine

departmental witnesses on the methodology adopted for forecasting traffic flow

on the grounds that such a right would “over-judicialise” proceedings.219

Similarly, Viscount Dilhorne and Lord Lane considered and rejected the

imposition of trial-type procedural characteristics at an inquiry that was not

intended to be adjudicative in function,220 but did not consider what non-trial

procedural characteristics might be applicable in such circumstances. Even the

dissenting judge, Lord Edmund-Davies, took the same approach, disagreeing

only on whether the methodology adopted for forecasting traffic flow was a

factual issue for which procedural fairness required trial-type safeguards under

the supervision of the courts; or a policy issue for which trial-type safeguards

were inappropriate and procedural fairness was more appropriately supervised

by parliament than the courts.221

“Judicial Review and Procedural Fairness in Administrative Law: I” (1980) McGill Law Journal 25:

520; and Macdonald, R., A., “Judicial Review and Procedural Fairness in Administrative Law: II”

(1980) McGill Law Journal 26: 1. Loughlin argued that to adopt alternative benchmarks for the

review of non-adversarial forms of decision-making would lead to a crisis in administrative law

theory. See Loughlin, M., supra.217 Supra, p. 95.218 Ibid., p. 96.219 Ibid., p. 97.220 Ibid., pp. 107 and 102.221 Ibid., pp. 115-6.

187



Article 6(1) of the ECHR does not require that those whose “civil rights and

obligations” are being determined by a decision are entitled to a role in defining

the agenda or in shaping the decision-making process. Although “victims” may

still challenge the decision for being in breach of Article 6(1) when relevant

issues, arguments or evidence have unfairly been excluded from the scope of

the deliberation of the decision,222 this does not mean that all relevant issues

must necessarily be included. In the Balmer-Schafroth case for example, the

dissenting judges accepted that the Swiss government’s policy to pursue a

nuclear power strategy (as opposed to its decisions relating to licences, public-

works contracts and specifications) to be a “prerogative act” and “sovereign

attribute” of the State, and therefore an inappropriate subject for a fair hearing

pursuant to Article 6(1).223

Even more so than in common law, the requirements under Article 6(1) of a fair

hearing are heavily influenced by trial procedures. This does not mean however,

that a trial procedure is required at every stage of the determination of a person’s

civil rights; a procedural defect at one stage of the proceedings may be ‘cured’ in

subsequent proceedings.224 In particular, as long as an administrative decision

is “subject to subsequent control by a judicial body that has full jurisdiction and

does provide the guarantees of the Article 6 para. 1”,225 i.e., a court that is

competent to entertain and rule upon all relevant questions of law and fact that a

party may wish to raise,226 a “fair hearing” may not be required at the

administrative stage of the decision.

The Secretary of State is effectively the final authority in respect of decisions to

authorise the disposal of radioactive wastes, subject only to the court’s

222 Kraska v. Switzerland (1994) 18 EHRR 188, para. 30.223 Supra, pp. 618 and 621.224 See for example, X v. Switzerland, App. No. 9000/80 (1982) 28 D & R 127; and Schuler-

Zgraggen v. Switzerland (1993) 16 EHRR 405, para. 52.225 Albert & Le Compte v. Belgium (1983) 5 EHRR, para. 29. Emphasis mine.226 Zumtobel v. Austria (1994) 17 EHRR 116.

188

supervisory jurisdiction over the legality of his decisions; there is no provision for

appeal to a court on the merits or otherwise of the Agency‘s or Secretary’s

decisions. In such circumstances, the question is whether Article 6(1) requires

any procedural safeguards at the administrative (pre-judicial review) stage when

the opportunity for subsequent judicial review exists.

In R. (on the application of Alconbury Developments Ltd.) v. Secretary of State

for the Environment, Transport and the Regions & other cases,227 the issue

before the court was whether planning decisions made by the Secretary of State

at the end of a quasi-judicial procedure before a planning inspector appointed by

the Secretary, with only a possibility of judicial review rather than an appeal to

the High Court, was compatible with Article 6(1). For Lords Slynn and Clyde, the

quasi-judicial procedure, coupled with the availability of a sufficient degree of

judicial review, satisfied the requirements of Article 6(1) whether or not it was the

inspector or the Secretary of State who made the final decisions.228 Lords

Hoffman and Hutton, on the other hand, took a more contextual approach. They

considered the desired and actual grounds of complaint before the court

exercising supervisory jurisdiction in each particular case to be critical. Where

the complaint related to a dispute of factual issues, the observance of a quasi-

judicial procedure at the inquiry stage was a relevant consideration. Where on

the other hand, the complaint related only to the merits of a policy decision, the

scope of supervisory jurisdiction of the domestic court alone was sufficient; the

existence or otherwise of procedural safeguards at the inquiry stage was

irrelevant.229 Lord Nolan, did not give any indication in his short judgement that

227 [2001] 2 All ER 929. Hereinafter “Alconbury case”.228 Ibid., pp. 973, 977, 1005 respectively.229 Ibid., pp. 991 and 994; and 1014 respectively. Although the law lords purported to rely on

Bryan v. UK, (1995) 21 EHRR 342, on this point, the European Court of Human Rights in that

case seemed to consider the procedural safeguards at the inquiry stage to be an important

consideration for the European Court of Human Rights regardless of whether the grounds of

complaint before the supervising court related to policy or fact-finding (see in particular, para. 46

of the judgement). Zumtobel v. Austria, supra, was also cited, but is more ambivalent. There,

the administrative court was held to be in a position to address all the submissions of the

applicants without ever having to decline jurisdiction (para. 32) even though it only had a limited

competence to satisfy itself that the factual conditions precedent for the administrative decision to

expropriate the applicant’s property had been properly established without being able to rehear

189

he considered either the procedural safeguards or the context to be particularly

relevant; he seemed to have arrived at the conclusion that judicial review was

adequate for the purposes of Article 6(1) on the facts of the case as a matter of

constitutional principle as well as ECHR jurisprudence.

The conservative position in the Alconbury case is therefore that where recourse

to a court is limited to judicial review, a quasi-judicial procedure, at least in

respect of fact-finding, must still be followed at the administrative stage of

decision-making where civil rights are being determined.230 The requirement for

a fair hearing may not amount to anything more than what common law requires

of common law however. In Bryan v. UK and in the Alconbury case, a planning

inspector acting in a quasi-judicial role conducted the public inquiry, which was

regulated by statute and agency guidelines. Procedural safeguards involved the

calling of witnesses to give oral evidence, cross-examination of witnesses and

the making of representations. The Secretary of State also had to observe

additional statutory procedural safeguards protecting interested parties before

departing from any finding of fact made by an inspector.

In R. (on the application of Vetterlein) v. Hampshire County Council & Ors.

however, a further distinction was drawn between primary and secondary fact-

finding and it was held that where only the factual inferences involving

professional judgement, but not the primary facts were in dispute, a fair hearing

at the administrative stage could require no more than the opportunity to make

detailed written representations, as well as the opportunity to address the

administrative authority at a public meeting.231

evidence (para. 31). Crucially, it is not clear from a reading of the case whether the procedural

safeguards at the administrative stage of decision-making were thought to be relevant.230 According to Lords Hoffman and Hutton however, this requirement only arises where factual

issues are in dispute before the review court, and is not applicable in respect of disputes about

the merits of policy.231 R. (on the application of Vetterlein) v. Hampshire County Council & Ors. [2001] EWHC Admin

560, paras. 70-1. It has to be said that the distinction drawn between primary and secondary

fact-finding is a dubious one since the dispute in Bryan v. UK also concerned factual inferences

involving professional judgement rather than the primary facts (supra, para. 47).

190

In a further development, it has been held in R. (on the application of Adlard &

Ors.) v. Secretary of State for Environment, Transport & Regions)232 that in

decisions to determine planning applications where environmental decision-

making at the administrative stage is predominantly one that turns on questions

of judgement and discretion rather than on findings of fact, Article 6(1) does not

require that objectors to the application be orally heard by the local planning

authority, or at a public inquiry.

It is plain that given that the Environment Agency’s decision-making in relation to

the authorisation of radioactive waste disposal turns predominantly on questions

of discretion and judgement, and the involvement of secondary rather than

primary facts, the extensive written consultation exercises undertaken by the

Environment Agency would meet the requirements of Article 6(1) in this regard.

Aarhus Convention

While the Aarhus Convention is quite clear about the attendance requirements

for public participation in environmental decision-making (at least in respect of

decisions about permitting specific activities), it is significantly more vague when

it comes to the mode of participation to be adopted, essentially leaving it to each

contracting state to decide the appropriate procedure for public participation and

to inform the public of the procedure rather than consult the public on it.233

Nevertheless, states are required at a minimum to ensure that the “public

concerned” is provided with timely and effective notification of a proposed

environmental decision;234 and sufficient time for timely and effective

participation in the decision-making.235 The Convention is more ‘generous’ in

terms of agenda setting; it requires that the public must also be allowed to

submit “in writing or, as appropriate, at a public hearing or inquiry with the

232 [2002] EWCA Civ 671, para. 31. Hereinafter “Adlard case”.233 Art. 6, para. 2.234 Ibid., loc. cit..235 Art. 6, paras. 3 and 4.

191

applicant, any comments, information, analyses or opinions that it considers

relevant to the proposed activity”.236


Once again, the Environment Agency exceeded existing legal requirements in

respect of agenda setting by allowing participants to raise issues that were within

the Agency’s legal competence to consider. In the AWE Decision, the

Environment Agency consulted particularly on specific issues raised in its

“Consultation Response Questionnaire”,237 but it also welcomed responses on

any of the environmental issues raised in its consultation package.238 As the

Agency explained in its Proposals for EPC, one of the purposes of consulting on

the proposed decision was to check with consultees that all relevant issues had

been brought to its attention and that it had understood any consultee’s

concerns;239 this necessarily required that consultees be permitted to raise

issues that the Agency had not contemplated.

In respect of the Magnox Decision, a consultation response questionnaire was

also used, the issues were however more widely framed; consultees were invited

to comment on BNFL’s applications, the benefits or detriments of continued

operation or decommissioning (as the case may be), the proposed limits and

conditions on the Agency’s draft authorisation, and the consultation process.240

They were also invited to make any other comments they wished.

236 Art. 6, para. 7. Emphasis mine.237 Environment Agency, AWE Consultation Document, supra, Appendix 1.238 Ibid., para. 7.2. These issues were responded to in Environment Agency, AWE Decision

Document, supra, para. 4.239 Environment Agency, Proposals for EPC, supra, para. 3.13.240 See, for example, Environment Agency, Radioactive Substances Act 1993: Explanatory

Document and Draft Authorisation Prepared by the Environment Agency to Assist Public

Consultation on Applications by British Nuclear Fuels Ltd to Dispose of Radioactive Wastes from

Berkeley Centre Gloucestershire (Bristol: Environment Agency, 2000), Appendix 2. Hereinafter

“Berkeley Centre Magnox Consultation Document”.

192

Compared to the earlier decisions, the agenda for consultation in respect of the

Sellafield Decision seemed the most consultee-driven. A less structured

consultation format was adopted in terms of the issues for consultation;

consultees were simply invited to comment on its proposals as well as on all

matters set out in the consultation package, including the Agency’s methods and

assessments, rather than being given a list of issues to comment on.241

As mentioned earlier, an open invitation to consultees to comment on any issue

considered appropriate should however not be mistaken as an obligation to

consider all issues raised that were relevant to the regulation of the disposal of

radioactive wastes. In this regard, the Agency’s position was that

If representations are made, raising issues relevant to the decision but outside the scope

of the Agency’s expertise or remit, they should be referred to an appropriate organisation

for comment.242

As for the procedural rules for participation, the consultation procedures in

respect of the AWE, Magnox, and Sellafield Decisions were decided by the

Environment Agency, presumably with input from the public, but not necessarily

from the actual participants themselves. The Agency had consulted generally on

its proposals for extended public consultation on selected licence applications,

including its proposed consultation process at each stage of its decision-making

procedure243 and mechanisms for public consultation.244 Prior to this

consultation, In respect of the AWE Decision, the Environment Agency also held

public meetings at Newbury, Tadley, and Reading to explain its decision-making

process.245 Comments on the consultation process were also sought in the

course of each consultation, presumably to assist in planning consultations for

subsequent decisions.246 Thus, while participants were consulted on the

procedure for participation, and it is unlikely that their views had been considered

241 Environment Agency, Sellafield Consultation Document, supra, para. 6.95.242 Environment Agency, Proposals for EPC, supra, para. 3.17.243 Ibid., para. 3.244 Ibid., Annex 1.245 Environment Agency, AWE Decision Document, supra, para. 1.7.3.246 See, for example, Berkeley Centre Magnox Consultation Document, supra, Appendix 2.

193

by the Agency; there is little to indicate that the final procedure adopted actually

incorporated these views.

(C) Facilitator/Moderator


When considering applications for the disposal of radioactive waste, or reviewing

existing authorisations, the Environment Agency is not under any statutory duty

to provide opportunities for the public to participate in the selection of the

facilitator/moderator for public participation. Indeed, it is perfectly entitled to

appoint one or more of its own staff to act as facilitator or moderator. Similarly,

where the Secretary of State calls in the application for disposal of radioactive

waste, and she decides to hold a local inquiry to be held in respect of the

application, participants at the inquiry have no statutory role in the selection of

the facilitator/moderator.

In general terms, the Secretary of State has substantial control over how the

Environment Agency discharges its functions, both substantively and

procedurally. The Environment Agency must “have regard to” ministerial

guidance on the appropriate objectives to pursue in the discharge of its functions

including its contribution to the achievement of sustainable development.247 The

Secretary of State may also, after consultation with the Agency, give the Agency

directions of a general or specific character with respect to the carrying out of

any of its functions.248 In respect of authorisations to dispose radioactive

wastes, the Secretary may give directions as she thinks fit to refuse

authorisations, grant authorisations with or without specified conditions or

limitations, vary an authorisation, or revoke a registration.249 She may also call-

in applications of a general description or specific applications for her

determination.250 Procedurally, other than her power to give general or specific

247 1995 Act, s. 4.248 Ibid., s. 40(1).249 1993 Act, s. 23.250 Ibid., s. 24.

194

directions to the Agency with respect to the carrying out of its functions,251 the

Secretary of State is also empowered to cause inquiries or other hearings to be

held in connection with any of the Agency’s functions.252

In addition to overseeing the way the Environment Agency discharges its

functions, the Secretary of State also decides on the membership of the Agency,

including the designation of the chairman and deputy chairman of the Board.

While members are appointed for fixed terms of office and may not be

prematurely removed from office except on specified grounds,253 they depend on

the Secretary of State for re-appointment at the end of their term of office.254

Common Law

There is no provision for those who are entitled to be heard before a decision is

made to have a say in who ‘hears’ them; under the adversarial paradigm, the

right to choose the facilitator would be tantamount to the right to choose one’s

judges, understandably a practice that judges would be reluctant to

countenance. Common law does however, impose restrictions on the choice of

the person who hears the parties and subsequently makes the decision. In

particular, administrative decision-making must be free from a “real danger of

bias” in the sense that the decision-maker might unfairly regard with favour or

disfavour the case of a party to the issue under consideration by him.255 Thus, a

decision-maker must disqualify himself from making a decision in which he has a

direct pecuniary or proprietary interest in the outcome, or even if he has some

other personal interest in the outcome, e.g., the active promotion of a cause in

which he is involved together with one of the parties.256 It has however been

considered “self-evident”257 that the concept of bias does not operate to

251 1995 Act, s. 40(1).252 Ibid., s. 53(1).253 1995 Act, s. 1; read with 1999 Act, s. 26.254 Ibid., loc. cit..255 R. v. Gough [1993] AC 646.256 R. v. Bow Street Metropolitan Stipendiary Magistrate & ors., ex p. Pinochet Ugarte (No 2)

[1999] 1 All ER 577.257 Wade, H. W. R., and Forsyth, C. F., Administrative Law (8th edition) (Oxford: Oxford University

195

disqualify an administrative decision-maker who, by virtue of his office or

employment, has expressed or is under an institutional predisposition to promote

certain policy outcomes as long as his mind is not foreclosed.258 Furthermore,

where statute confers the power to make the decision on a decision-maker, and

on him alone, the courts have as a matter of necessity declined to disqualify the

decision-maker for apparent bias even if he has a vested personal interest as

opposed to a mere policy interest in the decision; legally, no one else can make

the decision.259

Thus, the Secretary of State’s, and by extension the Environment Agency’s,

‘predisposition’ towards authorising the disposal of radioactive wastes is not a

reason to disqualify either of them or their staff from granting the authorisation

decision or indeed from facilitating or moderating or appointing

facilitators/moderators for any public participation proceedings in relation to the

decision. Furthermore, since the 1993 Act clearly confers on the Agency and the

Secretary of State and on them only, the power to authorise the disposal of

radioactive waste, the courts are not likely in any case, to disqualify them from

deciding on the applications for authorisation or to conduct any public

consultation relating thereto.



As in common law, under the ECHR, the right to a fair hearing does not entail a

right to participate in the selection of a facilitator/moderator. Article 6(1) of the

Press, 2000), p. 464.258 R. v. Secretary of State for the Environment & anor., ex p. Kirkstall Valley Campaign Ltd,

[1996] 3 All ER 304. As Sedley J. pointed out on pp. 381 and 324 of the case, a decision-

maker’s commitment to policy can still be challenged in court if the decision-maker is shown to

have predetermined the issue by closing his mind to reasoned argument. This however, is not

because of the existence of apparent bias; but because he has fettered the discretion conferred

on him.259 R. v. Gaming Board for Great Britain, ex p. Kingsley CO/2506/94, 11th January 1996,

unreported.

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ECHR does however prescribe that the determination of civil rights and

obligations must take place before an independent and impartial tribunal.

“Independence” in this context entails independence of the executive as well as

of the parties.260 It may be inferred from factors such as the manner of

appointment of the members of the tribunal, their security of tenure, the

existence of guarantees against outside pressure and whether an appearance of

independence is presented.261

The tribunal and its members must also be free from prejudice or bias.

Impartiality under Article 6(1) does not merely denote the absence of personal

impartiality, i.e., personal conviction on the part of the decision-maker. It

includes an objective dimension – the tribunal must positively offer guarantee

sufficient to exclude any legitimate doubt of prejudice or bias.262 Clearly, the

requirements in respect of impartiality are more stringent than those in common

law. As Lord Slynn pointed out in the Alconbury case, independence and

impartiality are related concepts;263 it is difficult to see how a decision-maker who

is not independent can have the objective appearance of impartiality.

The European Court of Human Rights in Bryan v. UK considered that a planning

inspector did not have the requisite “appearance of independence” for the

purpose of Article 6(1) of the ECHR because the Secretary of State could revoke

his appointment at any time even during the course of proceedings that are in

progress.264 Given the limited tenure of the Environment Agency’s members and

the power of the Secretary of State to intervene in the Agency’s regulation of the

disposal of radioactive wastes, the Agency and its staff to whom day-to-day

operations are delegated do not have appear any more independent or impartial

than the planning inspector in Bryan v. UK. Nevertheless, this is not necessarily

incompatible with Article 6(1) if, as was the case in Bryan v. UK, recourse is

available to a sufficient degree of review by an independent judiciary. After

260 Ringeisen v. Austria (No. 1), supra, para. 95.261 Campbell & Fell v. UK (1985) 7 EHRR 165, para. 78.262 Piersack v. Belgium (1983) 5 EHRR 169, para. 30.263 Supra, p. 973.264 Supra, para. 38.

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dwelling at length on the fact that the planning inspector was required to decide

the applicant's planning appeal in a quasi-judicial manner, to exercise

independent judgement and not be subject to improper influence,265 the court

decided that on the facts of the case, the opportunity for judicial review satisfied

the requirements for an independent and impartial tribunal because the issues in

dispute at the judicial review involved “a panoply of policy matters” that could be

adequately dealt with within the reviewing court’s jurisdiction in respect of

questions of law. It held obiter, that even if the dispute had turned on facts

rather than policy, the review court’s limited fact-finding jurisdiction would have

been adequate for the purpose of satisfying Article 6(1) in the context of a

specialised area of law such as town and country planning.266

The House of Lords extended the decision Bryan v. UK to the facts in the

Alconbury case. In the former case, the planning inspector made the final

decision at the end of the inquiry. Overruling the latter decision at the High

Court, the Law Lords held that even where it was the Secretary of State and not

the planning inspector who made the decision at the end of an inquiry or hearing,

the decision could still be compatible with Article 6(1) of the ECHR as long as

recourse to a sufficient degree of judicial review was available. A number of the

judges were in part influenced by the common law position that ministerial or

departmental policy could not amount to bias such as to disqualify a minister

from making administrative decisions.267 At the same time, supposedly on the

authority of Bryan v. UK,268 Lords Hoffman and Hutton explicitly made a

distinction between factual and policy decision-making and held that

hypothetically, if a dispute on factual issues arose, it would have had to be

determined by a someone independent for the purpose of establishing the facts,

although not necessarily independent in respect of the policy or policy

application aspects of the decision; recourse to the courts for judicial review

would not have been adequate.269

265 Ibid., para. 46.266 Ibid., para. 47.267 Supra, pp. 975, 978, 982,998-9, and 1010-12.268 The European Court of Human Rights in Bryan v. UK was actually rather ambiguous about

this point.269 Supra, pp. 991-3, and 1014-5.

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The court categorised administrative decision-making into administrative and

judicial functions.270 It considered that judicial functions involved the

determination of rights, and had to be performed fairly and impartially.

Administrative decisions such as planning decisions, on the other hand, involved

policy, and subject to their being made lawfully, came within the purview of

Parliament and the ministers accountable to Parliament for making and applying

policy. In this, the ministers could not be and indeed was not expected to be

impartial. The House of Lords were unanimously of the view that to remove this

planning function to an independent authority unaccountable to the electorate

would be undemocratic.271 For the same reason, it held that the argument that

the Secretary of State was not impartial because the Ministry of Defence had a

financial interest in the planning application of the Alconbury development, whilst

true, was not incompatible with the Convention.272

Following the Alconbury case, an administrative decision need not be made by

an independent and impartial tribunal if recourse to the supervisory jurisdiction of

a court is available to those whose civil rights and obligations are being

determined, and fact-finding is carried out independently under a quasi-judicial

procedure.273 As mentioned in the last chapter, post-Alconbury, a fair hearing

does not necessarily require a quasi-judicial procedure at the administrative

stage of environmental decision-making where the judgement and discretion

rather than primary fact-finding play the predominant part.274 In decisions of this

nature, it has similarly been held that the administrative decision-maker need not

be an independent tribunal even in respect of the fact-finding aspects of his

exercise of judgement or discretion.275 If that is correct, then in relation to the

270 Ibid., pp. 974-5, 978, 982, 997-8, and 1010.271 Ibid., pp. 975, 978, 980, 999-1000, and 1018.272 Ibid., pp. 977, 979, 995, 1018.273 According to Lords Hoffman and Hutton however, the last requirement does not arise where

no factual issues are in dispute at the judicial review stage. As mentioned earlier, cases post-

Alconbury suggest that while a fair hearing is still necessary at the administrative stage, it is

doubtful that this will necessarily entail a quasi-judicial procedure.274 See the Adlard case, supra.275 Laura Cummins & Ors. v. London Borough of Camden & Secretary of State for the

Environment Transport and the Regions [2001] EWHC Admin 1116, paras. 341-59. See also

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authorisation of radioactive waste disposal, a matter where judgement and

discretion play a dominant part, then notwithstanding the lack of appearance of

independence of impartiality, recourse to the courts for judicial review would

suffice for the purpose of Article 6(1).

Aarhus Convention

Article 6(1) of the Aarhus Convention does not provide for the public concerned

play any role in choosing the moderator/facilitator for public participation.

Contracting states are only required to indicate for information, the relevant

public authority or any other official body to which comments or questions can be

submitted.276 Furthermore, the right of access to an independent and impartial

authority for the purpose of review arises only in respect of challenges to the

substantive or procedural legality of any decision, act or omission subject to the

provisions of Article 6 of the Convention,277 and not in respect of the merits of the

decision.


The Environment Agency practice is to appoint a chairman to facilitate/moderate

at public meetings without giving participants any say in the appointment.

According to the Environment Agency, a chairman who was independent of the

Agency chaired each public meeting in respect of the Magnox Decision.278 In

identifying appropriate chairs, the Agency’s practice was to seek persons with

some knowledge of the Agency and its procedures, who live locally and, have

the appropriate personal skills to conduct a potentially large public meeting.279

Friends Provident Life & Pensions Ltd. v. Secretary of State for Transport, Local Government

and Regions [2001] EWHC Admin 820, para. 94; and R. (on the application of Aggregate

Industries UK Ltd.) v. English Nature & the Secretary of State for the Environment, Food and

Rural Affairs [2002] EWHC Admin 908, para. 107.276 Art. 6, para. 2(d)(v).277 Art. 9, para. 2.278 Environment Agency, Magnox Decision Document, supra, para. P5.28279 According to information provided by the Agency in response to an email enquiry from me.

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Exceptionally though, the public meeting held at Manchester Town Hall on 1

November 2001 to consult on the Sellafield Decision (which I attended) was

chaired by the Agency’s own Deputy Chairman, hardly the paradigm of

independence in the circumstances.

Members of the public would naturally have reservations about their lack of

involvement in the appointment of facilitators/moderators for public participation

in the AWE, Magnox and Sellafield Decisions. Some participants at a public

meeting at Wylfa, for example, expressed concern about the bias of the

chairman for the public meeting – he was said to have “called on the same anti-

nuclear representative to open and close the meeting, ignoring those in favour of

nuclear power”.280

The independence and impartiality of the decision-maker would also be a matter

of concern for the public, not least because the government has a vested interest

in the outcome of these decisions by virtue of its ownership interest in the

applicants for authorisation to dispose of the radioactive wastes, as well as its

declared commitment to and dominant role in the continuation of activities that

generate these wastes, namely the maintenance of a nuclear deterrence,

production of nuclear power, and reprocessing of spent nuclear fuels

respectively. In the Magnox Decision for example, some respondents to public

consultation raised concerns about whether the Agency is “fully independent”.281

Some respondents also took the view that the Agency was “essentially an arm of

government”, and appeared biased and partial. Consequently, even before the

public participation had got underway, they already considered the authorisation

process to have been “rubber-stamped, hushed up and pushed through”.282

The Environment Agency responded by stating categorically that it was

independent of the industry it regulates. As for independence from government,

280 Environment Agency, Magnox Decision Document, supra, paras. P5.57 and P5.59. The

Agency did not address this concern with impartiality except to reiterate that all chairmen were

independent of the Agency without further elaboration.281 Ibid., para. P4.3.282 Ibid., para. P5.36.

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the Agency pointed out that its members came from a wide range of non-

governmental backgrounds.283

Conclusion

In The Ideologies of Planning Law, McAuslan concluded that planning law and

practice was underpinned by three distinct and competing ideologies -

firstly, that the law exists and should be used to protect private property and its institutions;

this may be called the traditional common law approach to the role of law. Secondly, the

law exists and should be used to advance the public interest, if necessary against the

interest of private property; this may be called the orthodox public administration and

planning approach to the role of law. Thirdly, the law exists and should be used to

advance the cause of public participation against both the orthodox public administration

and the common law approach of the overriding importance of private property.284

According to McAuslan, planning law is dominated by the first two ideologies,

whereas the ideology of public participation represented a challenge to the

power and position of the bureaucracy in government as well as the position of

private property in society. Both the courts and the public administrators

therefore tolerated this ideology of public participation only to the extent it did not

significantly conflict with the dominant “ideologies of the status quo”.285

Twenty years on, the ideologies typified by McAuslan can be applied to aid

understanding of other areas of environmental decision-making. The 1993 Act

embodies the ideology of the orthodox public administration; it is for Parliament,

and the minister and the Environment Agency to whom authority has been

delegated to make environmental decisions in the public interest. Public

participation within the statutory framework is consistent with this ideology; it is

283 Ibid., paras. P.5.37.284 McAuslan, P., Ideologies of Planning Law, supra, p. 2. See also, Poisner, J., “A Civic

Republican Perspective on the National Environment Policy Act’s Process for Citizen

Participation” (1996) Environmental Law 26: 53, 56-8; and Gauna, E., “The Environmental

Justice Misfit: Public Participation and the Paradigm Paradox” (1998) Stanford Environmental

Law Journal 17: 3 for broadly similar classifications of decision-making paradigms into

“synopticism” or “expertise-ism”, pluralism, and modern civic republicanism.285 Ibid., pp. 265 and 269.

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for the Environment Agency and the Secretary of State to decide who can aid in

decision-making and when and how they can help. To the extent that public

administrators perceive public participation as a disruptive force that challenges

rather than facilitates their authority to define the public interest, statutory

requirements to consult will be restricted to as small a list of statutory consultees

as considered necessary to assist the decision-maker, with some token public

participation to legitimise the decision. That is not to say that the decision-maker

has a clean slate to work from. Bureaucratic decision-making is inevitably

fragmented and incremental. There are issues that may be relevant to the

decision, but outside the decision-maker’s legal competence to examine. This

legal limit defines the scope of the agenda for the decision-maker and hence

also for the public supposedly aiding him in decision-making.

Private interest ideology is not so much concerned with improving the quality of

the decision as such; its concern is with procedural protection for substantive

rights against interference by administrative decisions purportedly taken in the

public interest. As such, it ensures that people who have certain private

interests that are at stake be consulted; regardless of the value of their potential

contribution to better substantive outcomes. On the other hand, people who are

interested but not affected need not be consulted as far as this ideology is

concerned. The ideology underpins the concept of procedural fairness in

common law and Article 6(1) of the ECHR, and to a lesser extent is also present

in the 1993 Act, influenced no doubt by the possibility of legal challenge from

disgruntled applicants for authorisation to dispose radioactive wastes or grantees

of existing authorisations who are denied a fair procedure prior to an

unfavourable decision.286

Common law procedural fairness also extends to protect certain interests that fall

short of legal rights. As the case studies show, common law or human rights

procedural protection of private interests works relatively well when narrow

individual interests such as life, liberty and property are at stake, but is less

286 For example, applicants for authorisation and grantees of existing authorisations to dispose of

radioactive wastes have a right of appeal against adverse Environment Agency decisions to the

minister and the right to be heard at an appeal. Third parties do not have a similar right to appeal

against adverse Agency decisions.

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useful when the envisaged harm is more uncertain and diffused. Similarly, the

courts have been more likely to intervene in fact-finding procedures that have

exclusive ramifications for litigants rather than in polycentric policy-laden

decision-making that impact the general population. In the latter case, the courts

have been less keen to intervene because they consider public participation in

such decisions more as a political matter for deliberation in Parliament, than a

legal issue for adjudication by the courts.

In general, the scope of common law procedural fairness is generally wider than

that of the Article 6(1) ECHR fair hearing. Thus, while a genuine concern about

the effects of discharge of low-level radioactivity on personal health or their

immediate environment may give rise to a right to be heard in common law; it

would not be sufficiently specific and imminent to give rise to an entitlement to a

fair hearing before an independent and impartial tribunal under Article 6(1).

Once the courts attempt to extend their doctrines of procedural fairness of fair

hearing to cover policy-laden administrative decision-making, it runs into crisis.

This crisis is evident in common law, and has been observed by academics.287

As they pointed out, the problem is that the extension of procedural fairness to

non-adjudicative decision-making requires evaluation outside the traditional

adversarial paradigm, and the courts simply lack the resources and possibly the

competence to undertake such a task. The same crisis has also arisen but in a

different form in the ECHR jurisprudence, where the courts, having decided that

Article 6(1) also applies to non-adjudicative administrative decisions that

determine rights and obligations, must now grapple with the ‘escape route’

whereby non-compliance with the judicial model of decision-making can be

‘cured’ by a right to appeal to or review by a court possessing full jurisdiction to

deal with the case as the nature of the decision requires.288 To the extent that

the requirements of procedural fairness or fair hearing are still tied to the

adversarial paradigm, instead of contributing to sustainable development through

communicative participation, the final outcome may reinforce existing inequity in

access to resources as the participants under a lis inter partes model are

combatants competing to further their own narrow self-interests.

287 See Macdonald, R. A., supra; and Loughlin, M., supra.288 See for example, Bryan v. UK, supra; and the Alconbury case, supra.

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In view of the dominance of the orthodox public administration and private

interest ideologies, it is not surprising that the public participation ideology in the

English legal framework for environmental decision-making has had to be

boosted with ‘imports’. The Aarhus Convention builds on existing environmental

impact assessment legislation,289 another example of an imported product of the

public participation ideology.290 The Convention has been criticised as vague

and unenforceable in many respects,291 but no doubt represents a significant

step in ensuring the widespread adoption of minimum requirements for public

participation in environmental decision-making, particularly in countries where

there are currently no domestic legal requirements to do so. Although the

Convention has done well by introducing new rights for wider public participation

in environmental decision-making, its requirements in respect of other aspects of

fair participation, i.e., in agenda and rule setting and facilitator/moderator choice

still fall short. Another limitation is that its requirement for public participation in

plans and programmes that relate to or affect the environment in tones that

sound more exhortatory than mandatory. Without opportunities for participation

in these areas, opportunities for participation in the decisions in respect of

specified activities may be too little too late.

The Environment Agency has generally met existing legal requirements in terms

of fair environmental decision-making, and in some respects has even

surpassed these requirements. It consulted the public widely, and to some

extent has been responsive to public feedback on the agenda and length of time

for consultation. In other areas, it may have to do more, although this is not

always possible in view of constraints on its legal powers and budgetary

allocations.292 For example, the options open to it and consequently its

consultees may be constrained by related past decisions (and non-decisions),

289 EC Directive 85/337, supra, as amended by Directive 97/11.290 See Lord Hoffman’s obiter dictum in the Berkeley case, supra, at p. 430.291 McAllister, S. T., “The Convention on Access to Information, Public Participation in Decision-

Making, and Access to Justice in Environmental Matters” [1998] Colorado Journal of International

Environmental Law and Policy 187, 188.292 The Agency has considered it inappropriate to fund extended public participation out of its

existing resources as this would lead to a reduction in other necessary activity. It is looking into

recovering the costs from industry itself (See Environment Agency, Proposals for EPC, supra,

section 6.0).

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e.g. the way nuclear technology has developed.293 Similarly, while it is possible

to invite public participation in the selection of facilitators/moderators, this would

add further to the costs of decision-making, which has to be funded by the

Agency, instead of by the applicants for authorisation. And while there is no

legal impediment to the Agency involving the public in selecting an independent

and impartial person to facilitate or moderate public participation, the

facilitator/moderator’s report cannot bind the Agency or the Secretary in any way

– no part of their statutory responsibility for decision-making may be fettered by

or delegated to another person or to the participants for independent

determination.

As I pointed out in Chapter 4, fairness in public participation only gives equality

of access to decision-making, but does not guarantee any real influence in

outcome. In order for the public participation in environmental decision-making

to make a positive contribution to the achievement of sustainable development, it

also needs to be guided by rules that facilitate competence. In Chapter 8, I

assess the competence of the public participation in the AWE, Magnox and

Sellafield Decisions as well as the extent to which the law and Agency practice

has facilitated (or impeded) competent public participation.

293 This was the observation made in Wynne, B., Rationality and Ritual: The Windscale Inquiry

and Nuclear Decisions in Britain, supra. He concluded that the Inquiry and nuclear decisions in

general were more like rituals conducted to rationalise a fait accompli than processes to look

rationally at issues afresh.

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Chapter 8: The Competence of Public Participation in the

Authorisation of Radioactive Waste Disposal

In Chapter 7, I concluded that although the Environment Agency has generally

met existing legal requirements in respect of fair public participation in

environmental decision-making, the law and Agency practice has on the whole

fallen short of the fairness criteria, particularly in respect of agenda setting for,

and rules of participation; and the selection of a facilitator/moderator. In this

chapter, I consider the competence aspect of public participation in the

authorisation of radioactive waste disposal.

In line with my conclusion in Chapter 4 that public participation in environmental

decision-making has the potential to contribute to the forging of impartial values

and the construction of reliable knowledge, I will focus on the theoretical and

practical discourse. While in practice, discussions of fact and value are

intimately related and cannot take place independently of one another, I will, for

purpose of analysis only, deal with them separately.

That is not to say that explicative and therapeutic discourses are not important.

Communication and understanding cannot take place without participants having

a definitive understanding of the claims and counterclaims being made by one

another. This requirement is particularly relevant when participants do not speak

the same language. In the Magnox Decision for example, consultation

documents in respect of the Trawsfynydd and Wylfa sites in Wales were, for

economic reasons, printed in English, while only a summary of these documents

were printed in Welsh. Furthermore, while public meetings were held in English

and Welsh, only one Agency key speaker had made his presentation in Welsh,

with the others did theirs in English.1 These practices put Welsh participants

who were not conversant in English at a considerable disadvantage in terms of

competent participation. The power to define the meaning of words used by

participants in discourse also often carries with it a hidden power to define the

agenda for discourse.2 To the extent that therapeutic discourse is concerned

1 Environment Agency, Magnox Decision Document, supra, paras. P5.44 and P5.45.2 For example, the power to restrict the definition of risk to refer only the statistical probability of

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with the sincere expression of non-moral preferences in the face of competing

needs that are of the same ethical priority, it is an important contributor to

sustainable development. Furthermore, as Webler pointed out, expressions of

feeling can often be translated into factual and value claims and incorporated

into the appropriate theoretical and practical discourses.3 The importance of

these two types of discourse should therefore not be underestimated and,

accordingly, it is imperative that the rules relating to public participation facilitate

competence in the discourses.

(A) Theoretical Discourse

Statutory Requirements

Access to Information

As pointed out by Webler, a competent theoretical discourse would require that

participants be given access to all information they consider relevant to the

decision.4 The Environment Agency is required to provide certain information to

the public under the 1993 Act. Under s. 39 of this Act, it must keep copies of all

applications made to it,5 and all documents issued by it under the Act;6 as well

as all documents sent by it to any local authority in pursuance of directions of the

Secretary of State. Subject to grounds of commercial confidentiality or national

security, copies of such documents must be made available to the public.7 Each

fatality is effectively a power to exclude the qualitative dimensions of risks from consideration.3 Webler, T., supra, p. 70. One example where this would be the case is the public perception of

risk of harm arising from the authorisation of radioactive discharges.4 Ibid., p. 67.5 Including supporting material, e.g., maps and photographs. See Environment Agency, Public

Registers of Environmental Information (Bristol: Environment Agency, undated), pp. 16-8.6 These would include certificates of registration or authorisation, notices of variation or

cancellation, enforcement and prohibition notices, copies of annual reports of the Agency’s

monitoring programmes of authorised discharges of radioactive wastes, and detailed monitoring

data held by the Agency and monitoring data provided to the Agency by operators pursuant to a

condition of the authorisation (Ibid., loc. cit.).7 In addition, local authorities are also required to make available for public inspection, copies of

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local authority must also keep and make publicly accessible copies of all

documents sent to the authority under the 1993 Act, again subject to any need

for commercial confidentiality.8

There is however, no statutory requirement to publicise the existence of any

application or the availability of the relevant documents; members of the public

are expected to be vigilant and diligent by checking the public registers regularly

if they want to be kept informed about proposed authorisations to dispose

radioactive wastes.

The value of such registers is not free from controversy. Rowan-Robinson, et al,

for example, pointed out some shortcomings in the operation of the registers,

namely, the lack of awareness of the existence of these registers, the lack of

access to them in terms of geographical location and, as a matter of

administrative arrangement, the prohibitive costs of making copies, and the low

level of comprehensibility of the data. These shortcomings partly accounted for

the low level of their use.9 Overall, they considered that registers played a

limited role in promoting public participation, and were simply “an easy option for

seeming to meet the pressure for greater public access to environmental

information without actually achieving very much”.10

Aside from the requirements under the 1993 Act, there are other statutory

requirements to make environmental information accessible to the public. Under

reg. 3 of the Environmental Information Regulations 1992,11 a “relevant person”,

essentially defined as a public authority or any body who has responsibilities

relating to the environment and is under the control of public authorities, must

make available to members of the public on request, information relating to the

environment12 in their possession that is not already available in public registers,

all documents sent to them by the Agency unless they have been directed otherwise.8 ss. 39(2) and (3).9 Rowan-Robinson, J., et al, “Public Access to Environmental Information: a Means to What

End?” (1996) Journal of Environmental Law 8(1): 19.10 Ibid., p. 37.11 Hereinafter “1992 Regulations”. The regulations, as amended by the Environmental

Information (Amendment) Regulations 1998, implement EC Directive 90/313/EEC, supra.12 Defined widely in reg. 2 as information relating to the state of any water or air, any flora or

209

unless such information must be withheld pursuant to the absolute exemptions in

reg. 4.13 While the Environment Agency is clearly such a relevant person, the

same cannot be said about either the AWE plc or BNFL.14 More importantly,

information relating to proposed measures or activities that adversely affect or

are likely to adversely affect the state of the environment, and information

relating to alternatives to such proposed measures and activities do not appear

to come within the definition of “information relating to the environment” and

hence within the scope of the ambit. Thus, much information that is potentially

relevant to the AWE, Magnox and Sellafield Decisions would not be made

available to the public under the Regulations. The shortcomings of EC Directive

90/313/EEC, from which the 1992 Regulations are implemented, have not gone

unnoticed; in preparation of the Community’s ratification of the Aarhus

Convention, the Commission has prepared a proposal for a new directive to

enhance public access to environmental information.15

When s. 1 of the Freedom of Information Act 200016 comes into force, members

of the public will have a more general right to access information held by a

“public authority”. As defined in s. 3 and Schedule 1, Part VI, the Environment

fauna, any soil, any natural site or other land; and any activity that adversely affects or is likely to

adversely any of the foregoing; and any activity or measure designed to protect any of the

foregoing.13 Some of the relevant grounds of confidentiality include situations where disclosure would affect

international relations, national defence or public security; or the deliberations of the authority; or

would involve the supply of documents under preparation or internal communications;

commercial or industrial confidentiality; and personal information the disclosure of which does not

have the consent of the person supplying the information.14 Hughes argued that BNFL was a relevant person because it had public environmental

responsibilities (in the widest sense of the word “responsibilities”), and is under the control (in the

sense of regulatory oversight of public authorities. He did not explain however, why BNFL’s

environmental responsibilities should be considered “public”. See Hughes, D., “Freedom of

Access to Information on the Environment: Directive 90/313/EEC and the DOE Consultation

Paper “Public Access to Environmental Information held by Public Bodies” [1992] Land

Management and Environmental Law Report 4(3): 74, 77.15 Commission of the European Communities, Proposal for a Directive of the European

Parliament and of the Council on public access to environmental information, COM (2001)402,

final, [2000] OJ C337E/156.16 Hereinafter “2000 Act”.

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Agency is a public authority. As BNFL is wholly government-owned, the

requirements under this Act to make environmental information also extend to it

under this Act. Although AWE plc is not a public authority, the Ministry of

Defence, a public authority, is a shareholder and the owner of the AWE sites.

This right will still be subject to exemptions, but while some of these exemptions

are absolute,17 others will apply only if the public interest of withholding the

information outweighs the public interest of disclosure.18 As with the 1992

Regulations, the duty to allow access to information is passive: the information

requested must be sufficiently specific to enable the authority to identify and

locate it, so it is up to the member of public to specifically identify the relevant

information himself rather than rely on the authority to identify and present the

relevant information to him.19 There is also no requirement on the part of the

authority to acquire information it does not possess at the time of the request or

to update such information.

Knowledge Construction

In deciding whether to authorise the disposal of radioactive waste, the

Environment Agency is constrained by statutory provisions and guidance as to

the facts it must consider and how these facts are to be determined. Importantly,

while there is nothing to prevent members of the public from making

representations of fact to the Agency, or for the Agency to consider these

representations to the extent they are deemed relevant to the discharge its

functions, there is no requirement for the final selection and determination of

facts to be made communicatively through public participation.

For example, the Agency is required to take into account of any likely costs in

discharging its functions to make the contribution to sustainable development;20

and unless and to the extent it is unreasonable to do so, take into account the

likely costs and benefits of the exercise or non-exercise, and the manner of

17 s. 2(3).18 s. 2(3).19 s. 1(3).20 1995 Act, s. 4.

211

exercise of its powers.21 The reference to likely costs and benefits, as opposed

to, say, potential or possible costs and benefits, arguably suggests that costs

and benefits that cannot be demonstrated on a balance of probability are to be

excluded from consideration. In addition, ministerial guidance to the

Environment Agency recommends that the Agency be guided, inter alia, by “the

views of the Government’s Chief Medical Officers, the Health and Safety

Executive and Commission and other interested bodies as to the effects on

human health”, and “evidence within the UK and internationally about proven

and likely impacts on the environment”.22

The Agency is also required to rely on “sound science”.23 The term is not

defined in the guidance, but the use of scientific knowledge is understood in A

Better Quality of Life as requiring the early anticipation of areas where scientific

advice or research is needed, the identification of “sources of information of high

calibre”, and where possible, the review of evidence “from a wide-ranging set of

viewpoints”,24 thereby favouring a more proactive critical analysis of the quality

of scientific advice drawn from a wide range of viewpoints as opposed to a

passive reliance in ‘official’ scientific advice.

When it is appropriate to do so, the Agency is also to apply the precautionary

principle.25 Following the reasoning of the High Court in the Duddridge case

however,26 since there is no comprehensive and authoritative definition of the

precautionary principle, the Agency can be expected to apply the principle as

interpreted in accordance with prevailing government policy, i.e., whenever there

21 Ibid., s. 39.22 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part II, para. 5.6(vi)(a). It should be noted that Part II of the Ministerial guidance has no

statutory basis. See also Department of the Environment, et al, Review of Radioactive Waste

Management Policy, supra, para. 50.23 Department of the Environment, The Environment Agency and Sustainable Development, ibid.,

Part I, para. s. 9(iv).24 Department of the Environment, Transport and the Regions, A Better Quality of Life, supra,

section 4.1.25 Department of the Environment, The Environment Agency and Sustainable Development,

supra, Part II, para. 5.6.26 Supra, p. 164.

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is a “threat of serious or irreversible damage”,27 without holding out for

conclusive proof of the costs and benefits in the course of discharging its

functions or exercising its powers.

Common Law


In Board of Education v. Rice & Ors., Lord Loreburn LC suggested obiter that

whether a decision-maker was determining law or fact, it could obtain information

in any way it thought best, but that fairness required giving “a fair opportunity to

those who are in the controversy for correcting or contradicting anything

prejudicial to their view”.28 Thus, in Fairmount Investments Ltd. v. Secretary of

State for the Environment,29 the House of Lords quashed a Secretary of State’s

confirmation of a compulsory purchase order because the respondents had been

unfairly deprived of the opportunity to refute adverse inferences made by the

inspector about the foundations of their houses and the absence of financially

feasible alternatives to demolishing the houses after a site inspection at the end

of a public local inquiry; the respondents had no knowledge that these adverse

inferences had been drawn and the evidence that had emerged at the inquiry did

not suggest any issue of foundation inadequacy, or of whether rehabilitation was

feasible, and neither had these issues been raised at the inquiry.

While there is a need to provide an opportunity for parties affected to correct or

contradict adverse factual premises, there is no requirement to provide

“exhaustive information” for the purpose of facilitating consultation. In the

Greenpeace case for example, Potts J. held that the Secretary of State was

entitled to conclude that the operation of THORP would provide financial benefit

to BNFL and jobs for the local population without seeing an independent report

27 Department of the Environment, Transport and the Regions, A Better Quality of Life, supra,

section 4.1. Emphasis mine.28 Supra, p. 182.29 Supra. See also, H Sabey & Co. Ltd. v. Secretary of State for the Environment & ors.. [1978] 1

All ER 586.

213

commissioned by BNFL and cited by in support of its claim that the operation of

THORP was financially viable. There was also no need for him to require the

disclosure of the report and details of BNFL’s commercial contracts to those he

was consulting.30


In the face of conflicting theoretical claims, an environmental decision-maker is

entitled to arrive at a final determination of the facts in a manner he considers

appropriate in the circumstances, as long as he does not act irrationally in the

Wednesbury sense in coming to the determination. This, as Lord Diplock

explained, meant that the administrative decision-maker was not permitted to

make a decision “which is so outrageous in its defiance of logic … that no

sensible person who applied his mind to the question to be decided could have

arrived at it”.31 In Mahon v. Air New Zealand Ltd. & ors.,32 he emphasised the

high degree of judicial deference towards administrative fact-finding:

the person making a finding in the exercise of … [an investigative] jurisdiction must base

his decision upon evidence that has some probative value … the decision to make the

finding must be based upon some material that tends logically to show the existence of

facts consistent with the finding and that the reasoning supportive of the finding, if it be

disclosed, is not logically self-contradictory.

As long as the environmental decision-maker acts within the bounds described

above, it is the duty of the courts when exercising its supervisory jurisdiction to

respect the fact that Parliament has entrusted the decision-maker and not the

court with the judgement and discretion to decide on the existence or otherwise

of a fact.33

The Bushell case shows the extent to which the courts will defer to

administrative determinations of fact, particularly in respect of policy-laden

30 Supra, pp. 371, at 378-9.31 Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935, 951.32 Mahon v. Air New Zealand Ltd & ors. [1984] 3 All ER 201, 210. Original emphasis.33 Per Lord Brightman, Puhlhofer & anor. v. Hillingdon London Borough Council [1986] 1 All ER

467, 474.

214

decision-making. There, the House of Lords gave a number of reasons why

objectors to two proposed road schemes were not entitled to cross-examine

departmental experts on the methodology used to forecast traffic growth to show

that it was flawed. Firstly, a minister was entitled to consult the officials in his

department in the course of the decision-making process without having to

disclose to objectors what advice he had received from them.34 Secondly, the

issue of projecting traffic growth was a matter for experts – “no one who is not an

expert in this esoteric subject could form a useful judgment as to their merits”.35

Thirdly, the method of defining ‘traffic need’ was an essential element of

government policy to prioritise the construction of motorways by reference to

their traffic needs, and therefore more properly a subject for parliamentary

debate rather than for investigation by an inspector at a local inquiry whose

findings were necessarily limited to the material presented to him at that

inquiry.36 In any case, the objectors had been allowed to criticise the adopted

methodology and to present their own evidence in support of their criticisms.37

Thus, while participants in environmental decision-making are permitted to make

competing theoretical claims, the resolution of conflict between such claims is

strictly a matter for the administrative decision-maker, subject only to judicial

supervision in the Wednesbury sense.38

European Convention on Human Rights and Fundamental Freedoms


The entitlement to a fair hearing under Article 6(1) of the ECHR implies

procedural equality - a reasonable opportunity for those affected to present their

case under conditions that do not place them under a substantial disadvantage

in relation to those who oppose their case. As the European Court of Human

34 Supra, p. 102.35 Ibid., p. 99.36 Ibid., pp. 98 and 100.37 Ibid., p. 100.38 Supra, pp. 98-100, and 102.

215

Rights pointed out in McGinley & Egan v. UK39, this requires that the state,

unless with good cause, not prevent access to existing documents in its

possession or falsely deny the existence of such documents that will assist those

whose civil rights and obligations are being determined in presenting their case

effectively. However, since the fair hearing under Article 6(1) is tied to the

adversarial paradigm, it would appear that there isn’t any positive duty for the

state to volunteer any information that unknown to those affected, may be of

assistance to their case.


Although Article 6(1) of the ECHR does not make any provisions for the

competent of factual determinations relating to environmental decision-making,

the European Court of Human Rights may, when considering whether an

environmental decision interfering with a substantive human right is justified,

subject the factual basis of the decision to scrutiny and question the competence

of the findings of fact.

In Hatton & Ors. v. UK40 for example, the applicants lived in the vicinity of

Heathrow Airport, and complained of night noise nuisance from night flights,

resulting in sleep prevention and sleep disturbance. The court agreed that the

applicants’ right to respect for their private and family life had been interfered

with. Moreover, it considered the interference unjustified despite conceding to

the government a margin of appreciation in such matters involving socio-

economic policy. In particular, the court rejected the government’s claim that in

permitting the increase in night noise level, it had struck a fair balance between

interference with the applicants’ sleep and the national economic interest in the

increased night flights. According to the court, the government had not done

enough to investigate the nature and extent of the interference with the local

residents’ sleep; while studies had been carried out on the effects of the

increased noise level on sleep prevention, there had not been a similar study on

sleep disturbance.41 The subsequent commissioning of further research was

39 (1999) 27 EHRR 1, para. 86.40 (2002) 34 EHRR 1. Hereinafter “Hatton case”.41 Ibid., para. 103. In contrast, it will be recalled that judicial review on common law principles

216

also considered to have come too late to have any impact on the increased night

noise that had already been caused. The court also criticised the government

for not having done its own research to quantify the aviation or economic benefit

of increasing night flights; its uncritical reliance on research carried out by the

industry in this regard was not considered adequate and, in any event, came too

late to assist the government in its deliberations.42 Finally, in the absence of any

prior specific and complete study with the aim of finding the least onerous

solution as regards the interference with the applicants’ sleep, the court was not

prepared to accept that the “modest” steps taken by the government to mitigate

the interference constituted a fair balance.43

While the European Court of Human Rights’ intense scrutiny of the government’s

competence of fact-finding is laudable, the court, despite having noted that the

government had carried out a series of public consultations between 1987 and

1999,44 the European Court of Human Rights did not seem to attach any

significance to the contribution of this consultation to the quality of fact-finding.

Nor did the court attempt to evaluate the competence of such consultation in this

regard.

Aarhus Convention


The provision for access to environmental information is one of the major pillars

of the Aarhus Convention. These provisions go beyond the current legal

requirements45 for access to environmental information.46 It goes beyond

only requires that there be evidence of some probative value to support an administrative

determination of fact.42 Ibid., paras. 100 to 102.43 Ibid., paras. 105 and 106.44 Ibid., paras. 25 to 65.45 Under s. 74 of the 2000 Act, the Secretary of State is empowered to introduce subsidiary

legislation for the purpose of implementing the Convention. To date, none has been introduced.46 Defined in Art. 2, para. 3 of the Convention as including not just information about the

environment, but also information on factors (e.g., radiation), or activities or measures affecting

217

existing legal requirements for access to environmental information; public

authorities will be required to take a proactive approach to the collection and

dissemination of environmental information.47 Thus, states must ensure that the

competent authorities “possess and update environmental information which is

relevant to their functions”.48 They must also ensure that there is “an adequate

flow of information to public authorities about proposed and existing activities

which may significantly affect the environment”49 and provide transparency and

effective accessibility in the way environmental information is made available to

members of the public,50 without having to declare their interest in the

information requested.51 In addition, it is not only the relevant ‘raw

environmental facts’ that must be made available; the state must also make

available to the public, its analyses of these facts, as well as any explanatory

material in its possession.52

In respect of environmental decisions about specific activities, beyond informing

the “public concerned” of the proposed activity, and the range of possible

decisions or the proposed decision,53 contracting states must ensure that the

competent authority provide the public concerned with access to available

information that is relevant to the environmental decision, including information

about the site, the proposed activity, the expected residues and emissions, a

description of the significant environmental impacts of the proposed activity, the

mitigation measures, the alternatives to the proposed activity considered, and

the main reports and advice issued to the authority.54

or likely to affect the environment; cost-benefit analyses or other economic analyses and

assumptions used in environmental decision-making; and the state of human health and safety,

condition of human life as they are affected or may be affected through the environment by

factors, activities or measures.47 The issue of whether the State has a duty under the ECHR to monitor the applicants’ exposure

to radiation while they were stationed on Christmas Island was raised in McGinley & Egan v. UK,

supra, but owing to procedural reasons, no decision was given in respect of this issue.48 Art. 5, para. 1(a).49 Art. 5, para. 1(b).50 Art. 5, para. 2.51 Art. 4, para. 1(a).52 Art. 5, para. 7.53 Art. 6, para. 2.54 Art. 6, para. 6.

218

Not all relevant information needs to be made available to the public; the usual

exemptions apply.55 For example, information that could adversely affect

national defence or public security;56 or commercial or industrial confidentiality

protected by law in order to protect a “legitimate economic interest”57 can be

withheld. Regardless of the legitimacy of these exemptions, the more liberally

they are interpreted and applied, the more access to information become

unequal amongst participants, and consequently the less competent any

theoretical discourse is likely to be.


There is no explicit provision in the Aarhus Convention for competent public

participation. As noted in Chapter 7 however, contracting states must allow the

public to submit in writing or, as appropriate, at a public hearing or inquiry with

the applicant, comments, information, analyses or opinions that it considers

relevant to the proposed activity58 and to take due account of the outcome of

public participation in the environmental decision.59 Arguably, this implies that it

is incumbent on contracting states to consider how the participation should be

structured to further the aim of allowing the public to participate constructively

(and not merely not in form as a ‘legitimacy-boosting’ measure). It is not clear

55 Art. 6, para. 6.56 For example, the disposal of radioactive wastes arising from the dismantling of nuclear wastes

is a matter of “administrative agreement” between the Environment Agency and the Ministry of

Defence (See Environment Agency, AWE Decision Document, supra, paras 4.5.3 and 4.5.4).57 Information relating to the economic benefits of a radioactive-waste producing practice could

arguably be a matter of commercial confidentiality. If so, then that issue in the Greenpeace case,

supra, pp. 370-1 and 378, would not be decided differently even if the Aarhus Convention, supra,

were applicable. In that case, Potts J. considered that there was no requirement to make public,

details of the commercial contracts between BNFL (the applicant for the authorisation of disposal

of radioactive wastes), and its customers, profitability figures, “and the like”, as well as the

contents of an independent report on the profitability of the THORP’s operations commissioned

by BNFL; and that the Secretary of State was entitled to decide, on the basis of BNFL’s

assertions concerning “contracts in hand, their profitability and their effect on employment in

Cumbria”, that the operation of the THORP was economically justified.58 Art. 6, para. 7.59 Art. 6, para. 8.

219

however whether the courts will accept that such an implicit requirement exists;

Jowitt J. for example, has suggested in respect of a Secretary of State’s public

consultation on a proposed aircraft noise reduction scheme that

if the decision-maker says he has considered and taken into account the representations

he has received his assertion must be taken at its face value unless there is material

before the court … effectively to impugn his assertion.60



Pursuant to the 1993 Act, the Environment Agency maintains public registers of

information for inspection at the Agency’s eight Regional and 26 Area offices,

with each office holding the registers relating to its own geographical area.61

Even so, an individual requiring access to information held by the Agency could

still have to travel a considerable distance to get to the registers. The difficulty of

access is compounded by the availability of the registers only during the day,

and only on weekdays.62 Finally, applications for authorisation to dispose of

radioactive wastes are not easy for the technically uninitiated public to read, so it

is not clear that access to such information without assistance in interpreting

them will be helpful to members of the public planning to participate in

deliberation on the application.

Fortunately, much of the relevant information for the purpose of the Environment

Agency’s public consultation on its proposed decisions to authorise the disposal

60 R. v. Secretary of State for Transport, ex p. Richmond upon Thames London Borough Council

& ors. (No 4) [1996] 4 All ER 93, 107 (HC). Emphasis mine. In contrast, Article 9(1)(b) of the

Amended Proposal for a Council Directive on Assessment of the Effects of Certain Plans and

Programmes on the Environment (COM99(73), [1999] OJ C83/13) proposes to place the onus on

the decision-maker to state how the outcome of public consultation has been taken account of in

the environmental decision. While this may not guarantee a competent discourse, it at least

opens the competence of the discourse to scrutiny.

61 Environment Agency, Public Registers of Environmental Information, supra, p. 21.62 Ibid., loc. cit..

220

of radioactive waste were made more comprehensible by the Agency’s

production of summary63 and explanatory documents to accompany the

information. The widespread circulation of these materials and their availability

on the Agency’s website significantly improved their accessibility. Information

provided in these documents went beyond current legal requirements.


The scope of the Environment Agency’s function of regulating the disposal of

radioactive wastes means that the radiological effects of the proposed disposal

of radioactive wastes on human health as well as on the environment, e.g.,

cancer and hereditary defects form one of its primary factual considerations.

Accordingly, I propose to use the theoretical discourse on this issue as an

indication of the competence of the theoretical discourse in respect of the

Agency’s decision-making as a whole. I begin with the theoretical claims in this

respect made or accepted by the Agency, then contrast these with those made

by those who oppose its proposed decisions in respect of the AWE, Magnox,

and Sellafield Decisions. I then examine how the conflict theoretical claims were

resolved and show that the final determination of ‘facts’ on this subject could not

be said to be the outcome of competent theoretical discourse.

As the Environment Agency itself noted, on the advice of the National

Radiological Protection Board,64 because cancer is a common illness with many

causes, it is extremely difficult to measure directly the extra cancer risk to

members of the public from exposure to low-level radiation.65 The difficulty is

aggravated by the time lag between exposure to radiation and a manifestation of

its radiological effects; the NRPB estimated that risks of radiation-induced cancer

become apparent in an exposed population about five to ten years after

63 In respect of the Sellafield Decision.64 Hereinafter “NRPB”. The Board was created under statute to advance the acquisition of

knowledge about the protection of mankind from radiological hazards and to provide information

and advice to persons, including government departments, with responsibilities in the UK in

relation to protection from radiation hazards. Members of the Board are appointed by Health

ministers.65 Environment Agency, Magnox Decision Document, supra, para. P2.82.

221

exposure, possibly sooner. The radiological effects of a proposed disposal of

radioactive waste are calculated using models developed by the NRPB and

MAFF using radiation risk factors recommended by the ICRP. These

recommendations were extrapolated from empirical studies of people exposed to

high doses of radiation, namely the Japanese atomic bomb survivors, and of

individuals occupationally exposed to low doses.66 Reviews of these studies by

the NRPB and the United Nations Scientific Committee on the Effects of Atomic

Radiation67 led the NRPB to conclude that “the weight of the evidence falls

decisively in favour of the thesis that at low doses and low dose rates,

tumorigenic risk rises as a simple function of dose”.68 According to the NRPB,

these models, were validated whenever possible, and showed that predictions

from prospective models had not been grossly in error, and tended to be

cautious. Reviews by the UNSCEAR of epidemiological studies on human

populations and the effects of ionising radiation on animal and plant cells also

supported the ICRP recommendations. In addition, although evidence was only

just beginning to emerge, experimental studies with cells and animals and

reviews of human, animal and molecular genetic data by the UNSCEAR also

supported a linear no-threshold relationship in relation to dose and heritable

effects.

Using the models that had been developed, it was estimated that there was a 1

in 20000 annual risk of contracting fatal cancer for a one-off radiation dose of 1

mSv to a population containing individuals of all ages;69 but a continuous

exposure of 0.3 mSv per year throughout a lifetime was sufficient to give rise to

an annual risk of fatal cancer of 1 in 100000.70 No estimates of non-fatal health

effects were given, but the Environment Agency was satisfied that the ICRP

66 Environment Agency, Magnox Decision Document, supra, Annex 1, Letter NR4.67 Hereinafter “UNSCEAR”. The Committee was set up by the General Assembly with a

mandate to assess and report levels and effects of exposure to ionising radiation. Its members

are drawn from scientists representing 21 member states.68 Environment Agency, Magnox Decision Document, supra, paras. P2.56, P2.69, and Annex 1,

Letter NR4.69 Ibid., para. 2.3.2.70 Environment Agency, Sellafield Consultation Document, supra, Appendix 9, para. A.9.8.

222

recommended dose limit of 1 mSv per year had made adequate allowance for

non-fatal cancers and possible hereditary effects.71

The estimates are of course not precise. According to the UNSCEAR, the

uncertainty in estimates of cancer risks was about four times higher or lower

than the actual risks for external radiation and “somewhat greater” for internal

radiations due to differences in radiation concentration in different parts of the

body leading to differences to doses to different body organs.72 The Agency

considered that these uncertainties had been adequately evaluated and

accommodated in the risk assessment and management process.73

Using an assessment methodology developed by the European Commission and

adapted by the NRPB for discharges from the AWE sites, the radiation exposure

to the critical dose group, i.e., members of public potentially receiving the

greatest radiation exposure74 arising from releases of gaseous and liquid

radioactivity at the limits requested in the AWE application was assessed to be

between 0.009 mSv and 0.02400 mSv per year in respect of AWE Aldermaston,

and between 0.000017mSv and 0.00063 mSv per year in respect of AWE

Burghfield.75 No estimates of the exposure arising from the disposal of solid

radioactive wastes were given although the Agency assured the public that they

would be below the relevant dose constraint and public limit.76 In respect of the

Magnox Decision, the power stations and research centre were individually

assessed for their radiological effects at the proposed authorised limits. The

assessed doses to the critical group ranged from 0.00013 m Sv per year for the

Berkeley Centre77 to 0.193 mSv per year for the Oldbury Power Station.78 As for

the Sellafield Decision, critical group doses were assessed to be somewhere

71 Environment Agency, Magnox Decision Document, supra, para. P2.33.72 Ibid., paras. P2.41 and P2.60.73 Ibid., para. P2.9.74 Based on prevailing lifestyle habits including the type and quantity of food consumed. The

critical does group does not necessarily include those most vulnerable to exposure to radiation,

e.g., infants and children.75 Environment Agency, AWE Consultation Document, supra, sections 4.3 and 4.4.76 Ibid., para. 4.5. The constraints and limits are described in para. 2.7.77 Environment Agency, Magnox Decision Document, supra, para. P6C.539.78 Ibid., para. P6C.319.

223

between 0.260 mSv and 0.344 mSv per year for gaseous discharges and

between 0.130 mSv and 0.194 mSv per year for liquid discharges.79

A statistical probability of fatal cancer may seem tolerable to a specific individual,

but may be less so to society if its collective and cumulative effect is a large

number of fatalities and harm to people and wildlife all over the world for

thousands or millions of years. The Agency considered it not practicable to

provide prospective assessments for all localities; since doses were not

expected to be higher than the assessed critical group dose, the risks at these

localities were assumed to be lower than those for the critical group.80 Contrary

to the DEFRA’s Guidelines for Environmental Risk Assessment and

Management, which the Environment Agency co-authored, no indication or

estimate was given about the magnitude, spatial and temporal, of the

consequences of the proposed discharge of radioactive wastes, or the time lag

between exposure to radiation and the manifestation of the radiological effects.81

The Agency estimated however, that a year’s discharge of radioactive waste at

the authorised discharge limits proposed in the Magnox Decision would deliver a

total collective dose over a truncated 500-year period82 of about 4.7171 man Sv

in respect of the UK, and 26.16 man Sv in respect of Europe in respect of the

magnox power stations and the Berkeley Centre.83 Assuming the ICRP linear no

threshold dose-risk estimates to be correct, I have calculated that for each year

79 Environment Agency, Sellafield Consultation Document, supra, Appendix 8, para. A8.17.80 Environment Agency, Magnox Decision Document, supra, para. 6C.185.81 Department of the Environment, Transport and the Regions, Environment Agency, and

Institute for Environmental Health, Guidelines for Environmental Risk Assessment and

Management (London: DETR, 2000), section 2.1.82 Collective doses were truncated at 500 years only because estimates of doses beyond 500

years were considered too uncertain to be included. As such, the estimated collective dose bore

no relation to the actual temporal scale of the radioactivity (ibid. , para. P2.142); some

radionuclides can continue to be radioactive for thousands or millions of years before becoming

stable. For example, Carbon-14 has a half-life of 5730 years; Iodine-129, 16 million years; and

Uranium 4.5 billion years. These radionuclides are among those considered for discharge in the

Magnox and Sellafield Decisions.83 Ibid. See para. P6B.34 for the collective doses of radioactive discharge from the operating

stations and Berkeley Centre. For the collective doses from the remaining stations, see paras.

6C.69, 6C.479, and 6C.519.

224

of discharge of radioactive waste at the authorised limit, there would be an

expected increase of 0.2 fatal cancers in the UK and 1.3 fatal cancers in Europe

in the following 500-year period.

For the Sellafield Decision, the collective doses for the UK, Europe and the world

were estimated at 4.3 man Sv, 72 man Sv, and 450 man Sv respectively,84

translating to an expected 0.2, 3.6, and 22.5 additional fatal cancers in the UK,

Europe and the world respectively in the following 500-year period.

As the RWMAC and NRPB pointed out however, these estimates of collective

doses were highly uncertain.85 They involve predictions about the size and

lifestyle habits of future populations for the next five hundred years, no mean

feat, and almost certainly to be wrong. Furthermore, they still do not tell us

anything about the non-fatal effects arising from the authorised radiation

exposure, some of which may be cumulatively transmitted genetically to future

generations, or the expected distribution of the collective dose within and across

generations.

As to the projected radiological effects on the environment, the Environment

Agency acknowledged that knowledge on the subject was limited. In the case of

the AWE Decision, it adopted a “precautionary” screening criterion of five

kilometres for the purpose of identifying European sites designated as Special

Protection Areas and Special Areas of Conservation under the Conservation

(Natural Habitats) Regulations 1994, which may be affected.86 Based on the

ICRP models developed for the protection of humans, and its assessment that

the environmental quality of the River Thames at Pangbourne showed “no

discernible effect on its biology” as a consequence of discharges of radioactivity

from the AWE,87 it concluded that “on balance”,88 it was satisfied that discharges

of radioactivity from the AWE at the proposed limits would not have any

significant effect on habitats, flora or fauna in either the Thames Basin Heath or

84 Environment Agency, Sellafield Rview Consultation Document, supra, paras. A8.38 and A8.39.85 Environment Agency, Magnox Decision Document, supra, paras. P2.140 and P2.142.86 No explanation was given as to how the criterion of five kilometres came to be selected.87 Environment Agency, AWE Decision Document, supra, para. 4.6.6.88 Presumably, this means they were satisfied on a balance of probability.

225

the River Thames.89 No details were offered as to the reliability of extrapolating

from the ICRP model developed for human protection to environmental

protection or of the assessment that it had carried out.90

In the Magnox Decision, the Environment Agency acknowledged the inadequacy

of its earlier assumption that the standard of environmental control needed to

adequately protect mankind would ensure that other species would also not be

put at risk.91 Despite this acknowledgement, the Agency considered that

pending the development of a more systematic approach to radiological

protection for wildlife and its own research into the potential effects of radiation

on wildlife, it would continue to adopt the ICRP’s approach as the screening

criterion for further assessment of the radiological effects on wildlife.92 Based on

this admittedly inadequate approach, the Agency concluded that since the

assessed dose to a hypothetical person continuously inhabiting a location

representative of each designated conservation site was less than the dose limit

for the general public, the radioactive discharges at the proposed limits would

not be likely to have a “significant” effect at these sites.93 Further evidence to

support this conclusion came in the form of a study of the absorbed radiation

dose for some representative aquatic organisms believed to be the most

sensitive of aquatic organisms in the immediate Sellafield offshore area and for

the Cumbrian coastal area. The highest absorbed radiation dose estimated in

the assessment of 32 microgray per hour compared favourably with the

UNSCEAR reference dose rate of 400 microgray per hour for aquatic organisms

in general; below this reference rate, it was “generally considered that it is

89 Environment Agency, AWE Decision Document, supra, para. 4.6.8.90 In contrast, when the Environment Agency conducted a survey of organically bound tritium in

soils and watercourses near the AWE, its report was published and put on the public register.

See Environment Agency, AWE Decision Document, supra, para. 4.6.7.91 Environment Agency, Magnox Decision Document, supra, para. P6A.70.92 Ibid., loc. cit..93 Ibid., para. P6A.73. The criteria for classifying a particular degree of harm as significant or

insignificant is based on the observation of the “relevant biological endpoints”, generally

accepted to include “morbidity, mortality, fertility, fecundity and mutation rate”. See Environment

Agency, The Sellafield Environmental Assessment, R & D Technical Report P430 (Bristol:

Environment Agency, 2001), in Environment Agency, Sellafield Consultation Document, supra,

Supporting Information, Item 98.

226

unlikely that there would be any significant effects on these organisms”.94 The

use of the “hypothetical human” as a generic screening criterion for wildlife with

different sensitivities to individual radionuclides was criticised by respondents to

public consultation.95

By the time it came to the Sellafield Decision, the Environment Agency finally

declared unacceptable, the ICRP recommendations that the adequacy of

protection of the environment from the radiological effects of the discharge of

radioactive wastes did not have to be considered independently of the adequacy

of protection of human health from the discharges.96 The Agency commissioned

an assessment of the radiological impact of proposed discharges on wildlife

species.97 This study assessed the radiation doses to a range of organisms

considered representative of those considered most exposed98 by virtue of being

in the immediate vicinity of the site. The highest absorbed radiation dose

estimated for representative marine organisms in the assessment, 15 microgray

per hour compared favourably with the reference dose rate of 400 microgray per

hour for aquatic organisms.99 Assessments of the internally absorbed and

external radiation dose rates to terrestrial species also showed that the highest

dose rate calculated was 0.045 microgray per hour, and compared favourably

with the IAEA criterion of 40 microgray per hour for plant or animal

populations.100

As was the case for the assessment of radiological effects of the proposed

94 Environment Agency, Magnox Decision Document, ibid., para. P6A.82. In the Sellafield

Consultation Document, supra, this reference rate was attributed to the IAEA (See Appendix 8,

para. A8.55).95 Environment Agency, Magnox Decision Document, ibid., para. P6A.74.96 Environment Agency, Sellafield Consultation Document, supra, Appendix 8, para. A8.49.

Presumably the approach was considered unacceptable in the earlier decisions because better

data was not available then. Again, this demonstrates the tentativeness of scientific knowledge;

the acceptability of a methodology is not objective, but depends on what is achievable at a

particular point in time.97 Ibid., Appendix 8, para. A8.8.98 These were not necessarily the organisms that were most sensitive to radiation.99 Environment Agency, Sellafield Consultation Document, supra, Appendix 8, para. A8.75.100 Ibid., Appendix 8, para. A8.74.

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discharges of radioactivity on humans, no indication was given as to the spatial

or temporal scale of the radiological effects on wildlife arising from the proposed

discharges.

Members of the public rigorously challenged the validity of many of the scientific

claims on which the Environment Agency based its proposed decisions. Some

respondents to the Agency’s public consultation cast doubt on the quality of the

data collected on Japanese atomic bomb survivors101 and on the value of

extrapolating studies on exposure to a single large acute external dose of

gamma radiation to the effects of chronic low dose, low dose rate alpha and beta

radiation.102 In response, the Agency merely cited the NRPB’s advice that

adjustments had been made to allow for these uncertainties in the data to

improve its reliability, that in any event these uncertainties were likely to have

only a small impact on cancer risk estimates. The NRPB too admitted that the

atomic survivor study could not address chronic or internal doses, but

maintained that it could still provide some information on low doses. It also

pointed to epidemiological data on chronic low dose exposures (radiation

workers) and internal exposures (patients’ intake of radium for medicinal

purposes), admittedly less comprehensive in terms of statistical power as well as

in terms of the range of ages or sexes covered,103 as evidence that current risk

estimates were not substantially in error.

Respondents also questioned the reliability of the current risk models, noting that

these models could not explain the higher observed incidence of certain cancers

surrounding nuclear establishments.104 The Environment Agency, on the advice

of NRPB, acknowledged that there was a higher incidence of childhood cancer in

the vicinity of some nuclear sites, notably Sellafield and Dounreay, and in an

area of West Berkshire near to the Aldermaston and Burghfield nuclear sites.105

101 These included the under-representation of old and very young persons in the data, missing

early data since studies only commenced five years after the atomic explosions, and the

likelihood misdiagnosis of radiation-related illnesses in the early years after the explosions.102 Environment Agency, Magnox Decision Document, supra, paras. P2.79, P2.80 and P2.85.103 Ibid., paras. P2.81, P2.82, and P2.86.104 Ibid., para. P. 2.73.105 Ibid., para. P2.74.

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It cited however the conclusion of the Committee on Medical Aspects of

Radiation in the Environment,106 in respect of the Sellafield excesses that “on

current knowledge, environmental radiation exposure could not account for the

excess”.107 COMARE was unable to offer any explanation for the phenomenon

either, but expressed the belief that “a mechanism involving infection may be a

factor affecting the risk of leukaemia and NHL [non-Hodgkin’s lymphoma] in

young people in Seascale”. It also concluded that radioactive releases from the

Dounreay site were not able to account for the excess cases in young people

living around Dounreay. As for the finding of an excess of leukaemia in the area

of West Berkshire, COMARE dismissed as statistically unreliable and likely to be

a chance finding commonly observed in studies involving small areas and small

numbers of cases. In any case the actual level of radiation was considered far

too low too account for any increase in cancer or leukaemia.108 The evidence

was also deemed inconclusive because other non-radiological factors could

possibly be at work to explain the inconsistency without discarding the model.109

In response to expressions of concern from respondents, the Environment

Agency, on the advice of the NRPB, also cast doubt on post-Chernobyl infant

leukaemia studies in Scotland and Wales that suggested that the long-term risk

of cancer from low-level radiation was as much as between 100 and 300 times

greater. The NRPB rejected these studies as unconvincing for a number of

reasons,110 and concluded that there was no scientific evidence that current risk

106 Hereinafter “COMARE”. The Committee was set up to provide ‘independent’ medical and

scientific advice to the government on the health effects of radiation in the environment and to

assess the adequacy of available data and advise on the need for further research. Its members

are medical and scientific experts recruited from universities, research and medical institutes.107 Environment Agency, Magnox Decision Document, supra, para. 2.74.108 Environment Agency, AWE Decision Document, supra, para. 4.5.7; and Magnox Decision

Document, ibid., para. P2.75. Emphasis mine.109 The NRPB suggested that these factors might include population mixing, social class

structure and infective agents. It acknowledged however, that it was not in a position to

comment on these possibilities, and did not offer evidence in support of its suggestion. See

Environment Agency, Magnox Decision Document, ibid., para. P2.76.110 Environment Agency, Magnox Decision Document, ibid., Annex 1, Letter NR1 and Letter

NR4. The NRPB criticised the potential for bias and confounding factors in correlation studies in

general; the low statistical power of the study owing to the small numbers involved; the

concentration on infant leukaemia rather than childhood leukaemia; the use of data from the

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estimates could be wrong by the suggested magnitude.111 Yet, the same studies

were sufficiently convincing for the European Parliament to adopt a resolution

noting that “the accepted model of radiation risk was unable to predict the

illnesses now arising as a result of [post-Chernobyl] radiation”,112 and calling on

the European Commission to “arrange an epidemiological study of the effects of

Chernobyl throughout Europe as a whole”, and the IAEA, UNSCEAR, ICRP and

European Atomic Energy Community113 to re-examine the risk model.114

Importantly, while studies casting doubt on the ICRP risk models had been

referred to the NRPB for critique, the Agency appears not to have considered the

need for the authors of these studies to respond to the NRPB’s comments.115

whole of Scotland and Wales rather than from south-west Scotland and north Wales; and the

lack of support for the findings from other studies. It added that scientific reports claiming a

much higher risk of cancer after exposure to low-level radiation were generally extreme positions

usually using highly selected information and often poorly designed studies. In contrast, it

considered that the “international scientific consensus on radiation risk had been built over many

years by large numbers of scientists working in different countries who had considered the

strengths and weaknesses of all available evidence before reaching conclusions” (See paras.

P2.43 and P2.44). Unlike the European Parliament, it did not express any need to re-examine

the risk model. It should be pointed out that criticisms have in turn been levelled against the

NRPB’s comments. These criticisms can be found on the website of a campaign group advised

by one o f t he two au tho rs o f t he s tudy i n ques t i on -

http://www.llrc.org/wobblyscience/subtopic/christopherrobinissayinghisprayers.htm; online as at 3

June 2002. These responses were not referred to by the Agency or the NRPB.111 Ibid., Annex 1, Letter NR4.112 European Parliament resolution on the problem of nuclear safety fifteen years after the

Chernobyl accident, and its health consequences, Minutes of 03/05/2001 - Provisional Edition,

B5-0321, 0322, 0323, 0324 and 0325/2001, Preamble para. E.113 This European Community was created by the Treaty Establishing the European Atomic

Energy Community 1957 (298 U.N.T.S. 3, hereinafter “EURATOM Treaty”), to assist in the

development of nuclear energy industry in Europe through the cooperation of its Member States.114 European Parliament resolution on the problem of nuclear safety fifteen years after the

Chernobyl accident, and its health consequences, supra, para. 11. The Agency did not refer to

this resolution. Perhaps it did not know of the resolution or didn’t deem it relevant to its

decisions.115 In fact, critics have responded to the NRPB’s comments. The responses can be found on the

website of a campaign group advised by one of the two authors of one of the studies in question

- http://www.llrc.org/wobblyscience/subtopic/christopherrobinissayinghisprayers.htm; online as at

3 June 2002. Neither the Agency nor the NRPB made any reference to these responses.

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Presumably, this has to do with the fact the NRPB is the legislative established

advisor on nuclear safety matters.

Respondents also questioned the adequacy of the dispersion model for the

purpose of assessing doses. They noted that HMIP had recommended a

different model for industrial plume modelling in determining short-term or near

field pollutant concentration and uptake by plants.116 The Environment Agency

maintained that its choice of the “’older generation’ model” with a better track

record was more appropriate in the circumstances. The NRPB had also advised

that the model recommended by the Inspectorate was also not without its

shortcomings. In any case, within the weather conditions in the context of the

UK, the differences in results for the two types of models were small.117

The survey on lifestyle habits of the local population, on which dose

assessments were based in the Magnox Decision, were also criticised.

Respondents argued that the MAFF habit surveys had been flawed in the past,

and argued for a precise intake survey to be taken rather than for unexplained

extrapolations to be made from a national survey taken with various assumptions

applied.118 The Environment Agency rejected these criticisms, noting that the

consumption data were based on extensive national surveys collected in 1991/2

and 1996, and conservatively, the top end of the distributions for the various

foodstuffs had been used.119 In the Sellafield Decision, seafood consumption

rates were based on data more recently recorded in West Cumbria as well as on

observations at other coastal communities around nuclear sites in the UK, but

terrestrial food consumption was still based on high-rate consumers from

national survey data.120

In respect of environmental impacts on wildlife, respondents criticised the

Environment Agency’s assessments in the Magnox Decision for failing to take

116 Ibid., para. P6C.193.117 Ibid., paras. P6C.194 to P6C.198.118 Ibid., para. P6C.212.119 Ibid., paras. P6C.213 and P6C.214.120 Environment Agency, Sellfield Review Consultation Document, supra, Appendix 8, para.

A8.18.

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account of the particular location of breeding fish as well as the congregation of

sea bass at outfalls. There was concern that the continued discharge of cooling

water at higher than ambient temperatures from the operating magnox power

stations could alter the metabolic rate of fish and alter the rate at which they take

up radionuclides.121 There had also been no assessment of the effects of the

upstream and downstream magnox plants on relevant conservation areas.122

The Agency accepted that water temperature could influence the uptake of

radionuclides by fish, but countered that there was no evidence to suggest that

the increase in uptake had a harmful effect on populations of fish.123 As for the

effects of the upstream and downstream plants, the Agency had included these

as part of its ongoing national review of the impact of permitted discharges on

conservation sites, and at that stage was not aware of significant detriments to

the environment in the neighbourhood of these sites.124

(B) Practical Discourse

Statutory Requirements

The Environment Agency is conferred by statute, a structured discretion to

exercise value judgement in the course of its environmental decision-making

relating to the authorisation of the disposal of radioactive wastes. The statute

builds into its provisions, guidelines and standards, certain value judgements

that do not seem to have been competently arrived at, nor are there any

provisions for a competent practical discourse to forge impartial value

judgements that promote the common interest.

As mentioned earlier, the 1995 Act requires the Agency to take into account any

likely costs in discharging its functions to make the contribution to sustainable

development;125 and unless and to the extent it is unreasonable to do so, to take

121 Environment Agency, Magnox Decision Document, supra, paras. P6A.86 and P6A.87.122 Ibid., para. P6A.96123 Ibid., para. P6A.87.124 Ibid., para. P6A.97.125 s. 4.

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into account the likely costs and benefits of the exercise or non-exercise, and the

manner of exercise of its powers.126 While neither the 1995 Act nor the 1993 Act

require the balancing of costs and benefits as such, it had been held in the

Greenpeace case that section 13 of the 1993 Act should be construed, in

accordance with Articles 6 and 13 of Council Directive 80/836/Euratom, to

require, for the purpose of authorising the discharge of radioactive wastes, prior

consideration of the justification of particular practices by ensuring that the

benefits produced to the exposed individuals or to society outweighing the

radiation detriments.127 Directive 80/836/Euratom has been superseded by the

Council Directive 96/29/Euratom of 13 May 1996, laying down basic safety

standards for the protection of the health of workers and the general public

against the dangers arising from ionising radiation.128 Unlike its predecessor,

which required justification for all practices, the new Article 6 requires justification

only for new classes or types of practice resulting in exposure to ionising

radiation; existing classes or types of practice “may be subject to review as to

justification whenever new and important evidence about their efficacy or

consequences is acquired”.

The Ionising Radiation Regulations 1999129 and the Radioactive Substances

(Basic Safety Standards) (England and Wales) Direction 2000130 implement

aspects of the BSS Directive 1996. In particular, the BSS Direction 2000

requires the Environment Agency, when discharging its functions under the 1993

126 s. 39.127 Greenpeace case, supra, p. 368. It would seem, according to Turner J. in R. v. Environment

Agency, ex p. Emanuela Marchiori & NAG Ltd [2001] EWHC Admin 267, para. 41, that the

requirement for justification applies only to civilian and commercial nuclear practices. If this view

prevails, then it would have no application to the AWE Decision. His Lordship’s decision has

now been thrown into doubt. On appeal, two of the three appeal judges expressed the view that

even military practices had to be justified under the Euratom Treaty, but did not expressly

overrule Turner J. on this point because the issue was obiter to the appeal judges’ unanimous

decision to dismiss the appeal - on the facts the Environment Agency had considered and

weighed the benefits and detriments of the practice associated with the discharge of radioactive

wastes and therefore justified the practice. See Emanuela Marchiori v. Environment Agency,

supra, paras. 59 and 61.128 [1996] OJ 159/1. Hereinafter “BSS Directive 1996”.129 SI 1992/3232.130 Issued under s. 40(2) of the 1995 Act. Hereinafter “BSS Direction 2000”.

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Act, to ensure that exposures to individual members of the public and of the

population as a whole resulting from the disposal of radioactive wastes are kept

as low as reasonably achievable,131 economic and social factors being taken into

account,132 and to have regard at the planning stage in radiation protection to the

following maximum dose constraints to individuals, namely a maximum dose of

0.3 mSv per year from a single new source of radiation and 0.5 mSv per year

from a single site.133 The sum of all man-made sources of radioactivity other

than medical exposure must also not exceed the dose limit of 1 mSv per year.134

The dose constraints and limits135 are based on the recommendations of the

ICRP and accepted by the government on the advice of the NRPB,136 without

any requirement for public participation.137 According to the NRPB, the limit took

into consideration a number of factors, including natural background radiation

and the health effects of continued exposure to additional radiation over a

lifetime.138 It is clear that these limits are partly a matter of value judgement, as

Clarke, the Chairman of the ICRP himself acknowledged

131 Hereinafter “ALARA”.132 BSS Direction 2000, Art. 2(1)(a). This requirement is in accordance with the BSS Directive

1996, Art. 6.133 BSS Direction 2000, Art. 2(2). In accordance with the BSS Directive 1996, Art. 7.134 BSS Direction 2000, Art. 2(1)(b). In accordance with the BSS Directive 1996, Art. 13.135 The difference between a constraint and a limit was explained by the NRPB. Exposures

above dose limits would be unacceptable on any reasonable basis. Below dose limits,

exposures would be acceptable, i.e., would not cause concern, if they are below dose

constraints; but only tolerable, i.e., not welcome but can reasonably be tolerated, if they are

above dose constraints. See Environment Agency, Magnox Decision Document, supra, para.

P3.61.136 Environment Agency, Magnox Decision Document, ibid., para. P2.30.137 See the Health and Safety at Work Etc. Act 1974, s. 50(3) and the 1995 Act, s. 40. There is

on the other hand, a duty on the part of the Health and Safety Commission to consult the NRPB

and any government department or other body that appears to it to be appropriate, prior to the

proposal of these regulations for promulgation by the Secretary of State. It should also be

pointed out that notwithstanding the lack of a legal requirement for public consultation; one did

take place before the BSS Direction 2000 was issued. The public consultation focussed more on

the implementation mechanism for the standards established under the BSS Directive 1996,

rather on the appropriateness of the standards themselves. There is also no legal requirement

for public participation in the preparation of EU Directives.138 Environment Agency, Magnox Decision Document, supra, para. P2.136.

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The aim of an appropriate, rather than the best possible, standard regardless of cost

cannot be achieved on the basis of scientific concepts alone. The Commission must

therefore supplement its scientific knowledge with value judgements on the relative

importance of different kinds of risk and balance the risks and benefits, and it must make

clear how these judgements are made.139

Admittedly, the standards recommended by the ICRP are ‘generous’ compared

to the Health and Safety Executive’s view, accepted by the Environment

Agency,140 to the effect that

[b]roadly, a risk of death of 1 in 1000 per annum is about the most that is ordinarily

accepted under modern conditions for workers in the UK … and it seems reasonable to

adopt it as the dividing line between what is just tolerable and what is intolerable … If the

maximum tolerable risk for any worker is set at around 1in 1000 per annum, it seems right

to suggest that the maximum level that we should be prepared to tolerate for any individual

member of the public from any large scale industrial hazard should be not less than ten

times lower, i.e. 1 in 10,000.141

Yet, it is not clear why the ICRP, or for that matter, the NRPB, for all its technical

eminence, should be considered particularly qualified to exercise the value

judgement that it is tolerable to expose the public to the equivalent of an

additional 1 in 20000 risk of fatal cancer from all man-made sources of

radioactivity other than medical exposure.142

Common Law

There is no legal duty to consult members of the public in respect of proposed

legislation of environmental standards that embodies value judgements, even if

such legislation plainly affects the rights or interests of individuals,143 let alone

139 Clarke, R. H., “Conflicting Scientific Views on the Health Risks of Low-level Ionising

Radiation” (1998) Journal of Radiological Protection 18: 159, 159.140 Environment Agency, Sellafield Consultation Document, supra, Appendix 9, para. A9.5.141 Health and Safety Executive, The Tolerability of Risk from Nuclear Power Stations (London:

HMSO, 1988), para. 122 and 124. Emphasis mine.142 On the basis of the recommended dose limit of 1 mSv per year in ICRP 60 and assuming the

reliability of the ICRP’s linear no-threshold dose-risk model.143 Bates v. Lord Hailsham of Marylebone & ors., supra, p. 1024.

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any duty to facilitate any particular mode pf participation. As Craig explained,

the presumption that a “hearing” takes place indirectly through the operation of

the principles of representative democracy, namely parliamentary debate, is

questionable both in principle and in reality.144 In the context of the authorisation

of disposal of radioactive wastes, the setting of dose limits and dose constraints,

whether via EU directive or a domestic statute, in fact involves ethical

judgements about the order of needs to be met. Yet, it has been held that in this

regard, ministers are entitled to follow the advice of HMIP, the NRPB and ICRP

and defer to their value judgement that compliance with certain recommended

dose limits and targets will protect individual members from unacceptable levels

of risk.145

The requirement for competent practical discourse in specific instances of

environmental decision-making also has no place in common law. As the

Greenpeace case shows, subject to the requirements of procedural fairness, the

appropriate mode of public participation in an environmental decision is a matter

for the discretion of the environmental decision-maker, to be exercised within the

bounds of Wednesbury reasonableness.146 Within Wednesbury

reasonableness, the resolution of conflicting normative claims, and the exercise

of value judgements, are also a matter for the administrative decision-maker. As

Lord Diplock pointed out in Council of Civil Service Unions v. Minister for the

Civil Service, the judicial review ground of unreasonableness applies, as much to

a decision that is “outrageous in its defiance of … accepted moral standards” as

it does to one that is outrageously illogical.147 Thus, value judgements by the

decision-maker can only be impugned when it is one that “no sensible person

who had applied his mind to the question to be decided could have arrived at

it”;148 the fact that the court would have decided the question differently, or that

there is a more competent procedure for arriving at a decision is irrelevant in this

regard.

144 Craig, P., Administrative Law, supra, p. 380.145 Greenpeace Case, supra, pp. 374-5.146 Ibid., pp. 382-4.147 Supra, p. 951.148 Ibid., loc. cit..

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Where the limits of reasonableness are drawn will depend on the particular

circumstances at hand; factors affecting the intensity of judicial scrutiny include

the nature of the interest interfered with, the degree of interference with the

interest, and whether the degree of policy content in the decision.149 Thus, the

courts will be particularly vigilant where a decision has the potential to seriously

interfere with a fundamental human right such as the right to life,150 right to

private and family life,151 or freedom of speech152 is in issue. On the other hand,

the courts will exercise restraint in respect of policy-laden decisions. As Laws

LJ explained, there are a number of reasons for this judicial position:

The first, and most obvious, is that the court is unequipped to judge such merits or

demerits. The second touches more closely the relationship between the elected and

unelected arms of government. The graver a matter of State and the more widespread its

possible effects, the more respect will be given, within the framework of the constitution, to

the democracy to decide its outcome. The defence of the realm, which is the Crown's first

duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of

everyone; and everyone will look to the government they have elected for wise and

effective decisions. Of course they may or may not be satisfied, and their satisfaction or

otherwise will sound in the ballot-box. There is not, and cannot be, any expectation that

the unelected judiciary play any role in such questions, remotely comparable to that of

government. The position is not unlike that taken by their Lordships' House in relation to

attempts to challenge government decisions of what is sometimes called "macro-

economic" policy…153

Indeed, according to Laws LJ., the unreasonableness of a decision concerning

“high policy” was not even amenable to judicial review unless it involved actual

bad faith on the part of the ministers.154

In the specific context of whether to authorise the disposal of radioactive wastes

involves a low degree of interference with any one individual’s right to life. Such

decisions are policy-laden, and as is the case of the AWE Decision, may also be

149 Per Sir Bingham MR in R. v. Ministry of Defence, ex p. Smith, [1996] QB 517, 556.150 Per Lord Bridge of Harwich in Bugdaycay v. Secretary of State for the Home Department

[1987] AC 514, 531.151 R. v. Ministry of Defence, ex p. Smith, supra.152 Brind & ors. v. Secretary of State for the Home Department [1991] 1 All ER 720.153 Emanuela Marchiori v. Environment Agency, supra, para. 38.154 Ibid., para. 40.

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defence-operation related. This means that one can expect a high degree of

deference when it comes to judicial scrutiny of ethical judgements made in the

course of the AWE, Magnox, and Sellafield Decisions. In this respect, the

Environment Agency can expect the courts to defer to its decision, as long as it

can be justified ‘reasonably’ in the widest sense of the word; there is no question

whatsoever of the Agency being legally required to facilitate competent public

debate or discussion to forge values in the common interest.

The environmental decision-maker’s wide discretion in ethical judgements in

relation to the justification of a practice has also recently been confirmed in R.

(Friends of the Earth Ltd. & Greenpeace Ltd.) v. Secretary of State for the

Environment, Food and Rural Affairs & Secretary of State for Health. In that

case, Collins J. considered obiter, that the Secretaries of State, having

determined the net present value of the Sellafield MOX Plant (SMP), were

entitled to decide that

other factors which have not been taken into account, … can tip the balance in favour of

SMP. In addition, they must put social and other benefits in respect of which they have a

wide discretion into the balance.155

European Convention on Human Rights and Fundamental Freedoms

Under the ECHR, environmental decision-makers do not have an unfettered

discretion to make any value judgements they please. There are restrictions in

the way ethical judgements may be exercised by an environmental decision-

maker when balancing an individual’s substantive156 human right and the interest

of the wider community. None of these restrictions however, require the

decision-maker to include public discourse as the means for forging and

articulating values in the common interest.

Aside from Article 2 of the E C H R, which guards against the intentional

deprivation of life, and is therefore unlikely to be applicable to environmental

155 [2001] EWHC Admin 914, para. 17.156 As opposed to procedural human rights under Art. 6.

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decision-making except in extreme circumstances, the substantive human rights

that are potentially relevant in environmental decision-making, namely Article 8

on the right to respect for private and family life, home and correspondence; and

Article 1 of Protocol No. 1 on the right to peaceful enjoyment of one’s

possessions, are not absolute in the sense that the ECHR provides that they

may be justifiably interfered with where the interests of the wider community

warrant such interference.

For example, an interference with the right to respect for private and family life

will not give rise to an infringement of Article 8 if the interference is

necessary in a democratic society in the interests of national security, public safety or the

economic well-being of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the rights and freedoms of others.157

Similarly, an interference with the right to protection of property will not give rise

to an infringement of Article 1 of Protocol 1 if the interference is in the public or

general interest.158 Clearly, such a balancing act between an individual’s human

right and a community’s wider interest calls for the exercise of a difficult ethical

judgements that the European Court of Human Rights is unlikely to be any more

competent that a national competent authority in making. This difficulty was

recognised by the European Court of Human Rights. It noted in Powell &

Rayner v. UK:159

regard must be had to the fair balance that has to be struck between the competing

interests of the individual and of the community as a whole; and … the State enjoys a

certain margin of appreciation in determining the steps to be taken to ensure compliance

with the Convention …

It is certainly not for the Commission or the Court to substitute for the assessment of the

national authorities any other assessment of what might be the best policy in this difficult

social and technical sphere. This is an area where the Contracting States are to be

157 Art. 8(2). Emphasis mine.158 Contra the requirements of the BSS Directive 1996 which requires the weighing of all benefits

and detriments.159 (1990) 12 EHRR 355, para. 41.

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recognised as enjoying a wide margin of appreciation.160

Just how wide a margin of appreciation the European Court of Human Rights will

concede to a national authority in the latter’s exercise of ethical judgement in this

regard will vary with the nature of the social aim pursued as well as with the

particular interference involved.161

The ECHR case-law shows that where it has been held that the State, despite

being conceded a margin of appreciation, has failed to strike a fair balance, it

has generally done so on the grounds of inadequate fact-finding or mitigating

measures, but rarely if ever, that the state had simply got its value judgements

wrong manifestly wrong.

For example, in the celebrated case of Lopez Ostra v. Spain,162 the European

Court of Human Rights held that the applicant’s rights under Article 8 of the

ECHR had been unjustifiably interfered with. The court conceded to the

government, a margin of appreciation in balancing the economic interest of the

town with the applicant’s right, and held the interference unjustified only because

it considered that the government had unnecessarily prolonged the applicant’s

suffering by failing to take steps to protect the applicant’s right, and by taking

steps to challenge the domestic court’s temporary order of closure of the plant,

resulting in the suspension of the order.163

In Guerra & Ors. v. Italy,164 the European Court of Human Rights implicitly

accepted the state’s conclusion that the economic benefit from the operation of

the waste treatment, and the chemical factory respectively, outweighed the

interference with the applicants’ rights under Article 8. Like the Lopez Ostra

case, the court did not challenge the state’s conclusion that the social benefit

outweighed the cost to the individual. Instead, it focussed on the government’s

160 Ibid., para. 43.161 Leander v. Sweden (1987) EHRR 433, para. 59.162 (1994) 20 EHRR 277.163 Ibid., paras. 56, 57 and 65.164 (1998) 26 EHRR 357, para. 60.

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failure to take or avoid certain actions that could have mitigated the interference

of the applicant’s human rights.

Finally, there is Hatton & Ors. v. UK. There, the European Court rejected the

government’s claim that it had struck a fair balance between interference with

the applicants’ sleep and the national economic interest in the increased night

flights, but only because the government had not done enough to investigate the

nature and extent of the interference with the local residents’ sleep.

The judicial deference to administrative ethical judgement in decision-making is

not totally unwelcome. A more stringent judicial scrutiny of state action may not

necessarily lead to more impartial value judgement contributing to sustainable

development. The ECHR’s concern is with the protection of individual human

rights that may or may not correspond with an overriding priority for the meeting

of basic needs or the safeguarding of natural resources for future generations.

The increased scrutiny when human rights are interfered with will only lead to an

elevation in their importance when ethical judgements are made in the course of

environmental decision-making irrespective of whether protection of such rights

are compatible with the goals of sustainable development in specific cases.

In the context of the AWE, Magnox, and Sellafield Decisions for example, the

refusal of authorisation or the authorisation subject to onerous conditions or

limits of radioactive waste disposal may conceivably amount to an infringement

of the right to economically exploit property.165 On the other hand, there is very

little likelihood that the grant of such an authorisation infringes any substantive

human right. Although the link between environmental protection and human

rights has been recognised by the European Court of Human Rights since the

Powell & Rayner case,166 this association may not necessarily protect an

165 See for example, Fredin v. Sweden (1990) 13 EHRR 784, paras 48 and 55, where the

European Court of Human Rights accepted that the revocation of an applicants’ licence to exploit

a gravel pit on the applicants’ property was an interference with the use of their property.166 Supra. It should be mentioned that the European Commission of Human Rights had

acknowledged such a link much earlier in the case of Arrondelle v. UK (1983) 5 EHRR 118. That

case was also concerned the possible intervention of the private life of an applicant who lived

between an airport runway and a road as a result of noise pollution from excessive aircraft noise

and noise from the motorway. The Commission found that the complaint was admissible, but the

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individual from being exposed to additional risk arising from exposure to

radioactive wastes. As the Balmer-Schafroth case shows, exposure to

radioactivity within authorised limits has to be sufficiently serious, specific and

imminent danger to an individual’s personal integrity before it can even amount

to a determination of his civil rights,167 let alone an infringement of substantive

human rights.

Aarhus Convention

The Aarhus Convention does not prescribe any requirement for competent

practical discourse as such. As mentioned earlier however, the Convention

requires that contracting states allow the public to submit comments, information,

analyses or opinions that the public considers relevant to the proposed

activity,168 and more importantly, take due account of the outcome of such

participation in the environmental decision.169 Whether this amounts to anything

in view of the dicta of Jowitt J. in R. v. Secretary of State for Transport, ex p.

Richmond upon Thames London Borough Council & ors. (No. 4)170 remains to

be seen.


There are many ethical judgements involved in considering whether to authorise

the disposal of radioactive wastes, but not all of these are within the scope of the

Environment Agency’s functions. For example, it is the duty of the Agency to

comply with the dose limits and to have regard to dose constraints set out in the

BSS Direction 2000 issued under s. 40(2) of the 1995 Act, in accordance with

the BSS Directive 1996. Such standards were adopted by the government

following the advice of the NRPB, and in accordance with ICRP

case was subsequently settled between the parties.167 Supra, para. 50. The case dealt with the right to a fair hearing by an independent and

impartial tribunal in the determination of civil rights under Article 6 of the ECHR.168 Art. 6, para. 7.169 Art. 6, para. 8.170 [1996] 4 All ER 93, 107.

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recommendations, ostensibly on the basis of their scientific expertise, but clearly

not without considerable ethical judgement on their part as to what risks are

tolerable and what are not, for the present and future generations on whom

these risks will be imposed.

Since October 2000, it has also not been the Environment Agency’s function to

consider the issue of whether a practice is justified, i.e., whether the benefits

from the activity that produces the radioactive wastes outweigh the detriments

caused by such activities, including the radioactivity discharged in the course of

disposal of radioactive wastes - this duty has passed to the Secretary of State.171

Even when it had been the Environment Agency’s function to weigh the benefits

and detriments, the justification for the practice was ultimately be established in

the light of the pre-determined government.172 In the AWE Decision for

example,, the Agency had listed what it considered to be the benefits173 and

detriments174 associated with the operation of the AWE,175 noted that “the

balancing of benefits and detriments was already taken into account in the

government’s policy”.176 Having also considered each consultee’s view, it not

surprisingly concluded that “the practice of designing, constructing, maintaining

and dismantling nuclear warheads at the AWE is justified in the light of the

Government’s policy”.177 The Agency’s approach is understandable considering

171 Environment Agency, Magnox Decision Document, supra, para. P3.46.172 Environment Agency, AWE Decision Document, supra, para. 4.10.7.173 Namely, delivery of the UK defence requirement for an independent nuclear deterrent,

reduction of safety risks by decommissioning redundant plants, reducing proliferation risks by

decommissioning old nuclear weapons, provision of primary employment of 4500 staff and

secondary employment from investment in the local economy, and development of unique

international science and technology.174 Namely, radiation doses to workers employed at the sites, radiation doses to members of the

public arising from discharges of radioactivity, social concern about public radiation exposure and

cancer in West Berks, the continued accumulation of radioactive wastes, and operating costs to

the taxpayer.175 Environment Agency, AWE Consultation Document, supra, paras. 2.5.6 and 2.5.7.176 Ibid., para. 2.5.8. In fact, there did not seem to be any indication in the Ministry of Defence’s

White Paper, Strategic Defence Review, supra, that the government carried out any balancing

exercise of that sort.177 Environment Agency, AWE Decision Document, para. 4.10.7.

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that it was in reality not in a position to pass judgement on the merits of the

government’s defence policy, and was primarily more concerned with minimising

the wastes produced and improving regulatory control over its disposal rather

than examining the needs served by Trident production.178 This does not detract

from the fact however, that in the absence of a reasonably practical discourse on

the issue, it is difficult to be confident that the Agency had weighed these

benefits and detriments impartially and exercised its ethical judgement in the

common interest.

In the Magnox Decision, the Environment Agency’s role in justifying the practice

of nuclear power production was only to make recommendations to the

Secretary of State as to whether the benefits of continued operation or

decommissioning outweighed the detriments. A number of detriments were

identified in respect of the practice of operating some of the magnox power

stations,179 namely exposure of members of the public, workers,180 and other

living organisms,181 to radioactivity arising from discharges and accumulation182

of radioactive wastes,183 and to direct radiation;184 the production of spent fuel

which were then reprocessed with consequent detriments arising from the

reprocessing;185 the risks to workers and members of the public arising from

accidents in the course of operation of the nuclear reactor186 and transportation

of radioactive materials;187 the risks associated with nuclear proliferation and

terrorism;188 health detriments associated with uranium mining and milling

outside the UK;189 non-radiological effects on marine and estuarine

178 Ibid., para. 4.10.8.179 Similar approaches were taken in respect of the stations in the process of decommissioning

and the Berkeley Centre. The benefits and detriments identified can be found in Environmental

Agency, Magnox Decision Document, supra, paras. P6B.247 to P6B.233.180 Ibid., para. P6B.70.181 Ibid., P6B.49.182 Ibid., para. P6B.56.183 Ibid., paras P6B.35, P6B.38, P6B.115 and P6B.118.184 Ibid., paras P6B.38 and P6B.42.185 Ibid., para. P6B.64.186 Ibid., para. P6B.221.187 Ibid., para. P6B.228.188 Ibid., para. P6B.233.189 Ibid., para. P6B.62.

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organisms;190 light pollution,191 odour,192 and noise;193 the adverse impact on

local businesses such as local bait diggers, fishing and oyster industries,194 and

the export of sea salt.195 All these detriments were considered by the Agency to

be either of little or very little consequence. On the other hand, the benefits of

continued operation of the power stations were said to include the contribution to

the limiting of emissions of acid and global warming gases;196 the generation of

economic benefit to BNFL by way of profit from selling electricity – this was said

to be also a potential benefit to taxpayers who would otherwise have to make a

larger contribution towards the unavoidable costs of decommissioning and

legacy waste disposal;197 the cost savings to consumers of electricity;198 the

contribution to the capacity, reliability, diversity and security of electricity

supply;199 the employment directly and indirectly associated with the operation of

the plant and consequent contribution to the local economy of predominantly

rural areas and to the national nuclear industry.200

Far more controversial than the Environment Agency’s list of benefits and

detriments is its attempt to weigh the two, not least because the value of most of

these benefits and detriments in terms of serving human needs and aspirations

defy quantification. In view of the diversity of opinion, public consultation alone

did little to assist the Agency in this regard. While some members of the public

considered the protection of public and the environment the paramount

consideration;201 others were not as impressed as the Agency with the

commercial benefit to BNFL arising from the generation of electricity,202 or the

190 Ibid., para. P6B.97.191 Ibid., para. P6B.122.192 Ibid., para. P6B.124.193 Ibid., para. P6B.125.194 Ibid., para. P6B.198.195 Ibid., para. P6B. 201196 Ibid., para. P6B.89.197 Ibid., paras. P6B.176 to P6B.180, and P6B.183.198 Ibid., para. P6B.182.199 Ibid., para. P6B.192.200 Ibid., paras. P6B.197 and P6B.206.201 Ibid., para. P6B.147202 Ibid., para. P6B.181.

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contribution of nuclear energy towards a reliable, secure and diverse supply of

energy.203 There were also those who downplayed the significance the

contribution to local employment made by nuclear energy generation; they

pointed out that the renewable energy field could also provide local employment

opportunities.204 Without any attempt to engage participants in competent

practical discourse, it is difficult to see how the Agency could have impartially

weighed the benefits and detriments and arrived at the recommendation it did.205

Of the ethical judgements involved in the authorisation of disposal of radioactive

wastes, the one that falls most squarely within the Environment Agency’s

function, and therefore merits greatest scrutiny in this chapter, is the Agency’s

determination of the ‘optimum’ level of discharge of radioactivity, i.e., that

discharges are ALARA. This is an instance of the balancing of the costs and

benefits, but at a different level; having concluded that a practice is justified

because its benefits outweigh its detriments, the Agency must apply the ALARA

requirement to the question of how the detriments, in particular the health

detriments arising from exposure to radioactivity can be “optimised” to reduce of

exposure to humans and the environment up to the point where the benefits from

further reduction of the detriment would not justify the costs of implementing

further measures to achieve the reduction.

The Agency’s approach in this regard is to require grantees of authorisation to

use the best practicable means206 to limit the amount of radioactive wastes

discharged to the environment.207 Where alternatives exist for the management

of radioactive wastes, the operator will also be required to choose the best

practicable environmental option,208 i.e., that which will have the lowest

environmental impact, taking into account operational doses and risks, and

social and economic factors.209

203 Ibid., para. P6B.189.204 Ibid., para. 6B.195.205 Ibid., para. P6B.245.206 Hereinafter “BPM”.207 Environment Agency, Sellafield Consultation Document, supra, para. 5.6.208 Hereinafter “BPEO”.209 Environment Agency, Sellafield Consultation Document, supra, paras. 5.8 and 5.9.

246

In the Sellafield Decision, the Environment Agency sought to ensure that the

BPM was applied to minimise the total radionuclide content of individual waste

streams (i.e., solid, liquid, and aerial),210 and BPEO was chosen for each

principal radionuclide to be disposed. In identifying the BPM/BPEO from

available options, the Agency took into account environmental,211 health and

safety,212 operational,213 and socio-economic criteria.214

The Environment Agency’s decision on whether to require the introduction of

abatement measures for the reduction of aerial tritium provides a good

illustration of its exercise of value judgement in the context of the application of

BPM/BPEO. The possible abatement options215 for the reduction of aerial

discharges of tritium, included the use of metal (e.g., silver) “getters” to react with

the tritium (metal absorption) to form a solid compound;216 and the conversion of

aerial tritium into tritiated water using thermal or catalytic oxidation, followed by

dehumidification by condensation of the vapour into a liquid compound or

absorption with a solid absorber.217

The estimated cost of either abatement technique was at least £100 million, and

was expected to result in a maximum potential saving of 3.2 man Sv in collective

210 Ibid., para. 5.29.211 Ibid., Appendix 6, para. A6.95. These included the critical group and collective doses, future

risks from solid radioactive waste disposals, the impact of radioactive discharges on ecosystems

and wildlife.212 Ibid., Appendix 6, para. A6.115. These included radiation doses to workers from Sellafield’s

operations associated with the disposal of radioactive wastes; the risk of accidents arising from

schemes to reduce discharges; and the impact of any discharge reduction measures on the rate

of processing backlog wastes.213 Ibid., Appendix 6, para. A6.120. These included the technical feasibility and the timescale

needed to implement any scheme to effect reduction of discharges.214 Ibid., Appendix 6, para. A6.127. These included the financial costs of schemes to reduce

disposals; the economic impact of changes, e.g., job losses or job gains; and whether legitimate

uses of the sea and land will be prejudiced.215 Strictly speaking, these are not truly abatement options. They merely transfer the tritium from

one medium to another rather than abate the production of wastes.216 Ibid., Appendix 6, para. A6.148.217 Ibid., Appendix 6, para. A6.149.

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dose to the world population.218 This saving in collective dose was deemed

grossly disproportionate to the cost because it worked out to a saving rate of £31

million per man Sv saved, and this was more than 1000 times the NRPB

recommended figure of £20,000 per man Sv saved.219 The estimated reduction

in the critical group dose of 0.0032 mSv per year was also considered an

insignificant saving, being less than the threshold for optimisation of 0.02 mSv

per year set by the government as a matter of policy.220

The Agency also noted that the construction, operation and subsequent

decommissioning of the additional facilities necessary to implement either

abatement measure could expose the workforce to an extra radiation dose as

well as involve other radiological and conventional safety risks.

On the other hand, these activities would provide further employment at

Sellafield.221 Either abatement techniques would also lead to the creation of

additional intermediate level solid waste for on-site storage pending a disposal

route and low-level waste for disposal for disposal at Drigg in the course of

operation and their eventual decommissioning.222

Finally, it was estimated that either technique was unlikely to be ready for

implementation before 2010/11, and would be beneficial only for the remaining

lifetime of THORP. It would however not benefit the magnox reprocessing plant,

218 Assuming the ICRP linear no-threshold is correct, this is the equivalent of saving

approximately one-sixth of a life from fatal cancer.219 Environment Agency, Sellafield Consultation Document, Appendix 6, para. A6.161. This is

another instance of experts making ethical judgements about how much a life ought to be worth.

Since the recommendation was made in 1993, the Agency considered that in 2001 money terms,

the figure should be revised to £25,000 per man Sv saved (para. A6.132). In other words, it was

considered worthwhile to avoid an additional fatal cancer (as well as other health effects) only if it

did not cost more than £500,000 in abatement measures to avoid it.220 Ibid., Appendix 6, para. A6.163. The threshold is the level of radiation dose below which the

Agency need not press for implementation of further abatement measures provided BPM are

already adopted. It is not clear how this threshold is relevant for the purpose of ascertaining

whether an additional critical dose group saving is worthy of pursuit.221 Ibid., Appendix 6, para. A6.164. BNFL was unable to provide estimates of the radiation dose

to the workforce associated with these options (para. A6.158).222 Ibid., Appendix 6, paras. A6.165 and A6.166.

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the main source of gaseous tritium discharges since its closure date was

projected for around this time (i.e., 2010/11).223

Additionally, if the second abatement technique, i.e., thermal or catalytic

oxidation, were adopted, dehumidification of the tritiated vapour would have to

follow the oxidation process. Installing a dehumidifier was estimated to cost at

least £10 million and be ready only about 5-7 years before the magnox

reprocessing plant ceases operation.224 Its maximum potential collective dose

saving to the world population was estimated at 0.3 man Sv (at a saving rate of

£34.5 million per man Sv saved) and the estimated maximum potential critical

group dose saving was 0.0001 mSv per year.225

In the light of the above analyses, the Agency concluded both abatement options

for reducing aerial tritium were not practicable and that BNFL’s existing practices

(i.e., caustic scrubbing and chilled water dehumidification) remained the

BPEO.226

It may well be that the Agency did arrive at the correct conclusion on the basis of

the information before it; at the very least, it cannot be to be “outrageous in its

defiance of … accepted moral standards”.227 Embedded in these sophisticated

analyses were difficult and highly controversial ethical judgements about the

appropriate balance to be struck, particularly in relation to the expected value of

the savings in collective doses and critical groups doses and the health costs in

terms of additional risks to the Sellafield workforce.

There is no doubt that the ethical judgements involved in the authorisation of

radioactive waste disposal involve difficult normative questions about the value

of certain human needs, and the equity of access to natural resources. These

questions cannot be answered competently using technocratic methods of

analyses alone as the Agency attempted to do. It is true that the Agency

223 Ibid., Appendix 6, paras. A6.167and A6.168224 Ibid., Appendix 6, para. A6.178.225 Ibid., Appendix 6, paras. A6.179 and A6.180.226 Ibid., Appendix 6, para. A6.185.227 Council of Civil Service Unions v. Minister for the Civil Service, supra, p. 951.

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consulted the interested and affected, but the public is not a homogenous bloc

with identical values, and values are not something that can be statistically

collated by aggregating individual views. While some members of the public

would consider the risks from radiation to be the paramount consideration,228

and that spending public money to reduce discharges of radioactive waste

“would be money well spent”,229 others seemed more concerned that national

energy requirements should be accommodated without detriment to the national

economy,230 questioning the “huge costs” for further reductions in discharges

that they considered to be already at a low level.231 Without trying to forge an

impartial consensus on the appropriate values using competent practical

discourse, the Agency simply is not in a position to reach reliable impartial

ethical judgements on its own about whether radioactive discharges are justified,

ALARA, or BPEO.

Conclusion

In Chapter 7, I referred to McAuslan’s ideologies of planning law232 as an aid to

understanding how the laws concerned with environmental decision-making

generally, and in particular the authorisation of disposal of radioactive wastes,

relate to the provision of fair public participation in environmental decision-

making. The same approach can be profitably adopted to provide insight into

how the legal framework relates to competent public participation in

environmental decision-making, and all the more so since what little support

exists for the public participation ideology in law and practice is concerned more

with its value in promoting legitimacy and fairness than in contributing to good

decisions.233

228 See for example, Environment Agency, Magnox Decision Document, supra, paras. P2.10,

P6A.1 and P6B.147.229 Environment Agency, AWE Decision Document, supra, para. 3.5.2.230 Environment Agency, Magnox Decision Document, supra, para. P6A.2.231 Environment Agency, Sellafield Scope and Methodology Response Document, supra, paras.

3.10.3, 3.11.1 and 3.13.5.232 McAuslan, P., Ideologies of Planning Law, supra, p. 2.233 Steele argues, though, that developments in the law, in particular the environmental impact

assessment Directive and the provisions of the Aarhus Convention, are leading a shift in

orientation away from the legitimacy model towards the problem-solving model of public

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When it comes to competent environmental decision-making, the orthodox public

administration conception of public interest is evidently the dominating ideology

in the sense that it is judicially accepted to varying degrees that the

administrative or political environmental decision-maker is ultimately endowed

with the statutory authority to determine the facts and make the ethical

judgements in the public interest, and that consequently, as far as the substance

of the decision is concerned, the courts do not consider it their place to intervene

unless the administrative decision-maker’s ethical judgements or determination

of facts are manifestly unreasonable for having exceeded his margin of

appreciation or been Wednesbury irrational. Neither have the courts seen fit to

require that the decision be competently reached by communicative public

participation.

Deference to scientific authority in fact-finding is also high under this ideology.

The Environment Agency is required by ministerial guidance to apply the

principles of sound science. In practice, this means no more than resort to

advice from the international and national scientific establishments. As an

“informed customer” the Agency can, in theory, if it considers such advice

inadequate or unsatisfactory, commission its own studies to supplement such

advice. However, given the limited resources available for this purpose, this

option can only be used sparingly.

Deference to scientific authority degrades the quality of environmental decisions

when the experts chosen are not based on the broad-based discursive

consensus of the affected and interested, and their independence and

impartiality cannot be assured.234 In a similar vein, the value of endorsements

participation (See Steel, J., supra, pp. 418-23). It seems to me, however, that as evidenced by

Lord Hoffman’s recent dicta in Berkeley case, supra, discussed in Chapter 7, the courts’ concern

with public participation is still very much in relation to its legitimising rather than problem-solving

properties.234 See for example, Environment Agency, Radioactive Substances Act 1993: Proposed Decision

Document on the Application made by Devonport Royal Dockyard to Dispose of Radioactive

Wastes from Devonport Royal Dockyard Plymouth (Bristol: Environment Agency, 2001), paras.

5.15–5.20. The Agency simply addressed concerns raised in the course of public consultation

about the NRPB’s independence and impartiality with the stock response that the NRPB is a

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from scientific organisations’ reviewing each others’ research findings is

diminished to the extent that these organisations have significantly overlapping

membership, and their members and support technical staff are drawn from the

same scientific establishment, share a common paradigmatic viewpoint, and can

be expected to be less than absolutely critical when reviewing the work of other

organisations that generally support and reinforce their own findings, when in

fact good science would require them to review such work sceptically from a

wide range of alternative perspectives.235 There are clearly some in the scientific

establishment who remain strongly committed to the prevailing radiological

models even in the face of uncertainty and ignorance surrounding the subject

and to seek to defend these models by emphasising selected favourable

evidence while at the same playing down the magnitude or significance of the

models’ shortcomings. As such, it is heartening that having noted significant

differences of view among experts about the impacts of the internal ingestion of

radionuclides, the Environment Minister has called for the establishment of a

new broad-based working group to review the associated risks and the need for

further research.236

Similarly, the Environment Agency’s factual determination that the proposed

discharges of radioactive wastes pose no significant threat to wildlife has largely

public authority with statutory functions concerning the protection of people from radiation

hazards, that NRPB staff participate in the work of the ICRP and contribute to the work of the

ICRP and UNSCEAR, and that neither the NRPB nor the ICRP are influenced by the nuclear

industry.235 For example, the two UK members of the ICRP’s Main Commission (excluding one UK

emeritus member) are from NRPB. The Commission’s chairman since 1997, Professor R H

Clarke, has been a Director of the NRPB since 1987 and is the UK’s representative to

UNSCEAR. He is also a member of the RWMAC, the international advisory group of IAEA, the

European Commission group of experts responsible for advising on basic safety standards, and

a former Chairman of the OECD Nuclear Energy Agency's Committee on Radiation Protection

and Public Health. COMARE is supported in its work by a Secretariat provided by and based at

the headquarters of the NRPB. The Secretariat provides expertise to the members of COMARE

in the form of comprehensive background information and briefing papers that inform the

decision-making of processes of the Committee.236 Department for Environment, Food and Rural Affairs, News Release: Michael Meacher

Announces New Review of Radiation Risk Models, 31 July 2001, 77/01, reproduced in

Environment Agency Magnox Decision Document, supra, Vol. 2.

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been based on an absence of evidence of a significant threat, supplemented by

some evidence suggesting an absence of a threat. In such circumstances, any

conclusion that the proposed discharges would not cause significant

environmental harm is a matter of evidentiary judgement better suited for

competent practical discourse than left to the Agency and its scientific advisors.

In terms of the exercise of evidentiary judgement under the orthodox public

administration ideology, it is true that the Environment Agency is required to

have regard to the precautionary principle. The principle however lacks

sufficient substantive content for an aggrieved individual to mount a successful

legal challenge when the principle is purportedly misapplied; in the absence of

any authoritative definition of the principle, the courts are inclined to defer to the

decision-maker’s application of the principle as interpreted in declared

government policy rather than directly apply the principle themselves or require

that its application be made subject to public participation.

That is not to say that the private interest ideology is completely overwhelmed in

regard to competent environmental decision-making. In regard to fact-finding,

depending on the type of private interest at stake and the extent of interference

with the individual right in question, the courts are prepared to undertake a more

thorough scrutiny of the evidentiary judgements of the environmental decision-

maker, particularly where these are not based on scientific authority. The

degree of deference to the administrative decision-maker also depends on

whether the court in question is a domestic court or the European Court of

Human Rights or a domestic court. Thus, when local residents challenged the

Secretary of State’s decision in effect to increase the level of night noise

nuisance from night flights over Heathrow, the English Court of Appeal

dismissed the application for judicial review because it did not find the Secretary

of State’s decision Wednesbury irrational,237 but the European Court of Human

Rights upheld the challenge on the same facts, effectively finding the Secretary’s

fact-finding inadequate.238

237 R. v. Secretary of State for Transport, ex p. Richmond upon Thames London Borough Council

& ors. (No 4) [1996] 4 All ER 903, 923 (CA).238 Hatton case, supra.

253

While the European and domestic courts may not strike the same balance

between the competing orthodox public administration and private interest

ideologies in respect of fact-finding, they seem in agreement that the inter-

subjective construction of knowledge through theoretical discourse has no place

in the administrative determination of fact.

In the particular context of the authorisation of disposal of radioactive wastes, the

production of radioactive wastes in the course of nuclear weapon production or

energy production involve defence and economic issues respectively whose

merits the courts have generally shied away from reviewing. This is not

necessarily a bad thing in terms of contribution to sustainable development. The

authorisation of radioactive wastes within prescribed limits is generally not

considered a serious interference of any one individual’s health or access to the

environment, and thus not worthy of judicial concern. On the other hand, a

decision to refuse authorisation is more likely to give rise to heightened judicial

scrutiny over the decision since this could arguably be viewed as a serious

interference of an economic right to exploit property. Thus, heightened judicial

scrutiny to protect individual human rights is not necessarily aligned with the

values of sustainable development.

There is no question that the Environment Agency’s conclusions about the

radiological effects on humans and the environment are supported by evidence

of some probative value,239 backed up by scientific authority. As such, the

Agency’s factual determinations probably satisfy the requirements under

common law and the ECHR. This does not say very much however, about the

competence of the factual determinations in the sense of whether they represent

the best knowledge available for the purpose of environmental decision-making.

The limited theoretical discourse on the radiological effects of the proposed

discharges of radioactivity that had taken place shows that the state of

knowledge about the radiological effects of the proposed discharges of

radioactivity is not as certain as the Environment Agency chooses to believe. To

the extent that the Agency has allowed and responded to factual counterclaims

239 Mahon v. Air New Zealand Ltd & ors., supra, p. 210.

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that challenged its own factual claims held by the Agency and the experts on

which it relied, it has helped to expose with greater clarity the uncertainty and

subjectivity involved in the ‘established science’ of radiological protection, and

pointed the areas needing further research and investigation.

The courts consider ethical judgements in environmental decision-making to be

a matter for political accountability between the democratically elected politicians

and the electorate rather than legal accountability concerning the courts.240

Acknowledging their own incompetence in adjudicating conflicting value

judgements, the courts have taken to concede to environmental decision-makers

a margin of appreciation (in the case of the European Court of Human Rights),

and a ‘zone’ of non-interference within the limits of Wednesbury reasonableness

(in the case of common law). As in fact-finding, the actual degree of scrutiny will

vary with factors such as the nature of the private right or interference interfered

with and the seriousness of the interference, and the policy content and

complexity of the administrative decision taken in the public interest. However,

whether the ethical judgement has been made competently has not attracted

judicial concern.

Once again, in the particular context of authorisation of radioactive wastes, the

courts are likely to defer to the environmental decision-maker’s ethical

judgements. This is all the more so when decision-makers follow the ethical

judgements embedded in sound scientific advice, as to the acceptable dose

limits, or the acceptable trade-off between financial cost and potential critical

dose saving.

The strong influence of the orthodox public administration and private interest

ideology on environmental decision-making means that little emphasis is given to

the quality of public participation as a competent way to improve the quality of

environmental decision-making. Even the Aarhus Convention, the ‘champion’ of

the public participation ideology, does not fare well in terms of enhancing the

competence of public participation aside from strengthening access to

environmental information. Its primary strength in this regard is in facilitating

240 See for example, Laws J. in Emanuela Marchiori v. Environment Agency, supra, para. 38; and

the House of Lords in the Alconbury case, supra, pp. 975, 978, 980, 999-1000, and 1018.

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theoretical discourse by improving public access to environmental information

through requirements for contracting states to actively collate, update and

disseminate environmental information rather than passively grant access to

whatever environmental information happens to be available. The Convention is

less definitive however, about the competent resolution of conflicting validity

claims, leaving it to contracting states to decide on the most appropriate mode of

participation in particular circumstances, and how the decision is to take account

of the outcome of such participation.

Overall, both law and practice do not facilitate a high degree of competence in

the Environment Agency’s authorisation of radioactive waste disposal is low.

Conflicting theoretical and practical claims are systematically resolved by

reference to the scientific or political establishment. In terms of Arnstein’s

“ladder of participation”, the Agency’s public consultation exercise would not rank

any higher than the rung of mere “tokenism”; while the public is given the

opportunity to be heard and to have a voice, there is no assurance that the

outcome of their concerns and ideas will carry equal weight in the decision as

those favoured by the establishment.241 While the Agency may be commended

for extending its practice beyond current legal requirements for competent public

participation, as the examination of its practice shows, there is clearly more it

can do. At the same time, it needs to be remembered that any attempt to give

more prominence to the public participation ideology faces an uphill task in a

prevailing climate where the orthodox public administrations and private interest

ideologies of the law relating to environmental decision-making dominate.

241 Arnstein, S. R., supra, p. 217.

256

Chapter 9: Towards Fairer and More Competent Public

Participation in Decision-making

I have in this thesis argued that environmental decision-making does not

concern so much man’s relationship with nature as it does man’s relationship

with one another within and between generations. Sustainable development, the

equitable sharing of access to natural resources is more likely to be achieved

when environmental decisions incorporate fair and competent public

participation.

While perfectly fair and competent public participation in environment does not

exist; the value of a model against which the rules of public participation can be

evaluated is that it provides the means for deficiencies in our current rules of

public participation to be systematically identified, and consequently the focal

points for reform.

Some modes of participation are clearly better than others in terms of fairness

and competence. As the RCEP pointed out, the established methods for public

involvement1 are not ideal for articulating values.2 They generally elicit limited

pre-formed views on narrowly pre-defined issues and provide limited

opportunities for participants to exchange information and insights with other

members of the public and form values. Other mechanisms for participation,

such as focus groups, citizen juries, consensus conferences, and deliberative

polls may be more effective for this task.3 These are said to share certain

common characteristics, namely: Participation is organised by independent

groups to eliminate suspicion of bias. Participants are either randomly selected

or demographically representative, although the latter is preferred because it is

more likely to raise the quality of the decision through diversity in values and

knowledge. The groups are given access to a range of authoritative information,

followed by adequate time to forge values through discussion and debate with

1 Namely, public opinion surveys, consultation exercises, public inquiries, and parliamentary

procedures.2 Royal Commission on Environmental Pollution, The Twenty-first Report: Setting Environmental

Standards, supra, para. 7.20.3 Ibid., paras. 7.30 to 7.32.

257

other participants who bring with them different knowledge and perspectives.4

While these new modes of public participation allow more opportunities for public

deliberation within the group, they are overall less inclusive. There is also the

question of how truly representative a member of a participation group can be of

the multi-faceted people he supposedly represents. In the long term, depriving

the population at large of the moralising or learning effects of regular

participation in public deliberation may also be detrimental to the quality of the

environmental decisions.

I have demonstrated that environmental decision-making in England fall short in

significant aspects. In particular, the current environmental decision-making

paradigm is dominated, in terms of McAuslan’s terminology, by the orthodox

public administration ideology and private interest ideology. As a result,

environmental decision-making is very much a top-down affair, with supposedly

impartial determinations of facts and values left very much in the hands of the

political leadership and assisted by the scientific establishment. This approach

is complemented with judicial protection of private liberal interests against undue

interference from the state in its pursuit of its perception of the public interest. It

should not come as a surprise that the law and practice relating to environmental

decision-making in a liberal representative democracy such as England is

dominated by the ideologies of orthodox public administration and private

interests and not as conducive to fair and competent public participation

opportunities in environmental decision-making in the common interest as one

might hope. The immediate implications of a conclusion that the law and

practice on environmental decision-making do not promote a high degree of fair

and competent public participation in the authorisation of radioactive waste

disposal is that from a procedural standpoint, the contribution of these decisions

to sustainable development is limited.

The Environment Agency exceeded existing legal requirements in a number of

the criteria for fairness, in particular fairness in opportunities for attendance. In

other criteria, while Agency practice has generally complied with legal

requirements, this does not take one very far given that the law itself falls short

4 Ibid., para. 7.33.

258

of ideal fair and competent participation in many respects. To its credit, the

Agency has already also sought some public input on its proposed procedures

for public participation, and endeavoured to make its decision-making more

transparent and open. In a number of areas however, further improvements in

fairness and competence are possibly being hampered by institutional and legal

constraints. For example, the agenda for public participation in the Agency’s

environmental decision-making is necessarily limited by the scope of its statutory

functions. The Agency must also be guided by “sound science”. In practice, in

view of the resources available to it, this requires no more than its deferment to

scientific authority when in fact a competent theoretical discourse is more

compatible with the principles of sound science.5 The Agency is also required to

accept as the value judgements embedded in legislation or underlying

government policy and environmental standards as definitive instead of relying

on competent practical discourse to forge the same.

Fairer and more competent public participation is more likely to evolve if reforms

are introduced to weaken the grip of the orthodox public administration ideology

and private interest ideology on environmental decision-making. The prevailing

perception amongst the political establishment is that public participation, as

opposed to token public consultation, is a hindrance to balanced and informed

environmental decision-making by the democratically elected guardians of the

common good acting on expert advice. It therefore grudgingly yields time and

financial resources to public participation only to the extent it thinks participation

will further its pursuit of what it deems to be the public interest, or will be

adequate to meet the requirements of procedural legality and establish political

legitimacy.6 This perception is rooted in the myth that experts know best and are

able to provide objective advice whereas participants are irrational and only

5 As Popper points out, scientific objectivity is a product of the social or public character of

scientific method rather than of the individual scientist’s impartiality (See Popper, K., R., The

Open Society and its Enemies (Princeton, New Jersey: Princeton University Press, 1950), p.

405).6 This perception is very much implied in the government’s recent Planning Green Paper

proposals to speed up and improve the predictability of planning decision-making for major

infrastructure projects by limiting the scope and depth of public participation (See Department for

Transport, Local Government and the Regions, New Parliamentary Procedures for Processing

Major Infrastructure Projects (London: DTLR, 2001)).

259

interested in furthering their short-term interests. A changed mindset will be

necessary; environmental decision-makers need to realise that modern

environmental problems are highly complex, and neither they nor their expert

advisors can continue pretend to have a monopoly on impartial value judgement

or knowledge construction. Instead of the traditional expert-controlled

reductionistic and fragmented approach to decision-making, decision-making

now needs to be decentralised yet holistic, and above reflexive.

The courts accept the myth that the political leadership are necessarily the

champions of the public interest, but their preoccupation in administrative law is

that the narrow interests of the individual that have traditionally been the subject

of private law needs are not unduly sacrificed by the state in the name of the

deemed public interest. What needs to happen is that the courts widen their

procedural protection to cover wider collective interests. There is no reason to

assume that an interest shared in common with others is a priori less important

to the individual than one held exclusively by the individual. Both types of

interests ought therefore to be equally worthy of judicial attention and procedural

protection from interference. This widening of coverage needs to be

accompanied with a capacity to move away from the dominant adjudicative

paradigm and to understand that paradigm only as a specific model of

procedural fairness suite for the adjudicative contexts, and see administrative

environmental decision-makers not just as either judges no experts, but

facilitators of fair and competent public participation. Generic principles of

procedural fairness, along the lines of fair and competent participation must be

introduced into the vocabulary of the courts to enable it to customise appropriate

models to suit specific instances of environmental decision-making. While some

may argue that changing the traditional focus of the courts in this way would

amount to a “partial colonisation of the legal by the political process”,7 the legal

process has never been and is unlikely ever to be independent of the political

process to begin with.8 As long, as judicial scrutiny remains focussed on the

fairness and competence of the decision-making process, there does not have to

7 Harlow, C., “Public Law and Popular Justice” (2002) Modern Law Review 65: 1, 2.8 Griffith, J.A.G., The Politics of the Judiciary ((5th edition) (London: Fontana Press, 1997). See

also Chayes, A., “The Role of the Judge in Public Law Litigation” (1976) Harvard Law Review 89:

1281.

260

be any significant increase in judicial interference in the substantive merits of an

environmental decision beyond what is already inevitable because substance

can never totally be separated from process.

The current obstacle to the courts adopting such a paradigmatic shift is its

inability to install and monitor non-adjudicative procedures. As noted by Jabbari,

the law’s “information mechanisms” currently lacks the learning capacity to

enable courts to form intelligent views of the precise characteristics of

administrative decision-making that would render one procedure more

appropriate than another in a given context.9

The Aarhus Convention will introduce important but in my view, inadequate, legal

improvements to provide a boost to fair and competent public participation.

Anticipated improvements include new requirements for the dissemination of

environmental information, and greater publicity for proposed environmental

decisions and opportunities for public participation in these decisions, including a

more open-ended agenda for public participation. Yet, a lot more remains to be

done. There will not be any requirement for public input in determining the

participation procedure and selecting the facilitator/moderator. Public

participation will also not be mandatory for environmental policy-making and

standard setting although this will change if a Commission proposal for a

directive on strategic environmental assessments is adopted.10 Finally and

importantly, although there is a legal obligation in the Aarhus Convention to take

due account of the outcome of public participation in environmental decision-

making, there will not be any requirements for a more decentralised, holistic and

reflexive mode of decision-making. Ultimately, the outcome will still rely on the

judgements of of established political and scientific authority.

9 Jabbari, D., “Critical Theory in Administrative Law” (1994) Oxford Journal of Legal Studies

14:189.10 Commission of the European Communities, Amended Proposal for a Council Directive on

Assessment of the Effects of Certain Plans and Programmes on the Environment, supra. Strictly

speaking though, the scope of the Directive only extends to certain plans and programmes, and

not to policies.

261

Finally, fair and competent public participation cannot only be confined to

environmental decision-making in the public sphere. A holistic approach

requires that it be extended more broadly to environmental decision-making by

the private sphere,11 as well as decisions that by nature are not conventionally

classified as environmental decisions, but have significant consequences for the

way access to natural resources is shared, now and in the future.12 In other

words, the achievement of sustainable development will not only require deeper

public participation in environmental decision-making, but also public

participation in a broader scope of decision-making.

It is conceivable that the setting up of an environmental court or tribunal could

help in developing new principles of environmental decision-making and

jurisprudence, and go some way towards promoting fairer and more competent

public participation in environmental decision-making. The suggestion to set up

an environmental court or tribunal in the UK was made as early as over a

decade ago.13 Then, McAuslan proposed that appeals against pollution and

environmental control licensing decisions be heard by a separate judicial-type

body presided by a High Court judge and consisting of members with scientific

and non-scientific consist of legally qualified as well as members with scientific

and non-scientific backgrounds.14 In recommending the setting up of such a

court in the context of the land use planning system in England and Wales,

Grant suggested that there are several aspirational features that define the

concept of such a court/tribunal, including the horizontal and vertical integration

of environmental functions into a specialist/exclusive jurisdiction; the power to

determine merits; independence from government; supervisory jurisdiction over

environmental policy-making; expertise in environmental issues; broad rights of

access; non-adversarial procedures; affordable costs; and a capacity for

11 In this regard, Beck has argued that where private decision-making in the private sector affects

society, it should be politicised and brought under decentralised reflexive democratic control.

See Beck, U., supra, Ch. 8.12 Potentially, virtually every private or public decision bears consequences for the environment.

How a decision is classified can be quite arbitrary; it depends on how one chooses to frame the

issues.13 McAuslan, P., “The Role of Courts and Other Judicial Type Bodies in Environmental

Management” (1991) Journal of Environmental Law 195.14 Ibid., p. 203.

262

innovation to deal with the different demands that environmental issues throw

up.15 Clearly, these are features that have the potential to make a significant

contribution to fair and competent public participation environmental decision-

making. The concept of an environmental court has found favour with Lord

Woolf MR. In his 1991 Garner Environmental Law Lecture, he expressed

support for a new multi-disciplinary tribunal with a general responsibility for

overseeing and enforcing the safeguards provided for environmental protection

with wider discretion to determine its own procedure so as to take advantage its

specialist experience of environmental issues effectively.16 More recently, he

has also expressed the view that such a court would allow value judgements by

the government and scientific advice to be publicly scrutinised.17 The

government however remains “not convinced that there is a planning case for

the establishment of an environmental court”, but has not completely closed the

door on the possibility.18 The issue of an environmental court has recently been

revived by the RCEP. It very recently recommended that an Environmental

Tribunal be set up to hear merit appeals under environmental legislation other

than the town and country planning system, with the possibility that such a

tribunal be combined with the Planning Inspectorate to establish a Planning and

Environment Tribunal at a later date.19 The setting up of an environmental court

to meet the special requirements of environmental decision-making is a positive

step, but should only be an interim measure. As the imperative of fair and

competent public participation extends beyond environmental decision-making,

the entire judicial system may have to be overhauled along similar lines.

Reforming the law and practice to achieve fairness and competence of public

participation in decision-making will be a daunting task that will justifiably take

time and more importantly a strong commitment of political, technical and

15 Grant, M., Environmental Court Project: Final Report (London: DETR, 2000), para. 1.4.16 Woolf, H., “Are the Judiciary Environmentally Myopic?” (1991) Journal of Environmental Law

4(1): 1, 13.17 Reported in The Independent, 29 May 2001.18 Office of the Deputy Prime Minster, The Government’s Response to the Environment,

Transport and Regional Affairs Committee Report: The Planning Inspectorate and Public

Inquiries (Cm. 4891) (London: DTLR, 2000), para. (dd). Emphasis mine.19 Royal Commission on Environmental Pollution, The Twenty-third Report: Environmental

Planning (Cm 5459) (London: HMSO, 2002), paras 5.36 and 5.39.

263

financial resources. The law and practice cannot continue to promote egoistic

participation or to systematically favour economic interests regardless of need,

relative to environmental interests in environmental decision-making; the

economic, environmental and social costs for preserving the status quo will only

escalate as ecological systems head for collapse and the stakes increase. The

longer decision-making remains closed to fair and competent public participation,

the more it entrenches if not worsens intra-generational and intergenerational

injustice in access to natural resources. This poses a serious threat to the

human prospect, but long before the unavailability of natural resources becomes

intolerable for future generations, the globally disenfranchised victims of

unsustainable development of each successive generation, frustrated with a law

and practice unsympathetic to fair and competent public participation in decision-

making, will be taking to the streets and resorting to civil disobedience or direct

action with increasing frequency and ferocity to get their voices heard,20 and

more importantly, their basic needs met.

20 Donson, L. J. L., The Road to Conflict: Case Studies in the Effectiveness of Public Law as a

Mechanism of Participation in Environmentally Sensitive Decision-making (PhD Thesis, King’s

College London, 1997) (Unpublished).

264

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