The standard of scrutiny for environmental judicial review

The High Court has recognised a higher standard of scrutiny for environmental judicial review. Sam Fowles analyses the ruling.

R (Fighting Dirty Ltd) v (1) The Environment Agency and (2) The Secretary of State for Environment Food and Rural Affairs [2024] EWHC 2029 (Admin)

Mr Justice Fordham KC, sitting in the High Court, has recognised that, in certain environmental challenges, a higher standard of scrutiny (akin to that applies where human rights are at issue) is appropriate when determining whether a public body’s decision is “reasonable” in the Wednesbury sense. This is a potentially significant decision which will require decision makers to ensure they are robust in their reasoning for decisions which fall within this class.

The Case

The matter concerned the Environment Agency’s decision to remove the “Target Date” for implementing its “Sludge Strategy” without identifying a replacement date. The Sludge Strategy identifies the Agency’s approach to the management of “sludge (“a semi-solid slurry that can be produced from a range of industrial processes”). Sludge is used in agricultural processes and sometimes spread on agricultural land. This use is regulated by the Sludge (Use in Agriculture) Regulations 1989.

The Sludge Strategy identified that the regime in the 1989 regulations required updating and expressed an intent to recommend that ministers amend, and bring the regulation of sludge within, the Environmental Permitting (England and Wales) Regulations 2016. In earlier versions of the strategy, the Agency set a target date for making this recommendation. That target was missed on two occasions. In the most recent version (issued on 1 August 2023) the target was removed altogether.

The Claimant, a campaign group set up by three leading environmental campaigners, argued that it was unreasonable for the Agency to abandon even the attempt to set a Target Date.

The Test

The principle that the intensity of scrutiny in an irrationality challenge is context sensitive is well established (see R (Justice for Health Ltd) v Health Secretary [2016] EWHC 2338 (Admin)). Fordham J was required to determine the level of scrutiny that the context of the case before him required.

He concluded:

1. The standard of review is not changed by the context. The intensity with which that standard is applied, however, can and should change.
2. The seriousness of an environmental problem and publicly recognised necessity for change will point to a higher intensity of review while the fact that the public body is exercising a legislative function, the decision being of a political or “policy-laden” nature, or any relevant institutional or process limitations on the court will point in the opposite direction.
3. In practice a court exercising a more intense review will likely “do more” or “ask more”. In the former circumstances, the court will take a closer or more careful look at the decision and reasons. In the latter the court will require stronger reasons from the public authority to justify that its actions were reasonable.

Fordham J’s most important reasoning on the question of intensity bears repeating in full:

"I would not accept, in the context of environment protection, a fixed focus on “human” rights; as distinct from fundamental rights, interests and values. Where “an important individual interest is at stake” is only an “instance” of “more intense scrutiny where the circumstances require it” (De Smith §6-108). Nor can I accept a characterisation of environmental protection as “a matter” which does not “raise… issues of real importance to individuals” (De Smith §6-063). On an international plane, the lexicon embraces “the right to a clean, healthy and sustainable environment” as a “human right” (Verein §144). Public law protects rights, but also values and interests, including the public interest. This allows for an ecocentric standpoint; not just an anthropocentric one."

The Result

Fordham J ultimately decided that, even with the more intense standard of review applied, the Environment Agency’s decision was reasonable. He concluded:

1. The Environment Agency was not required, by statute, to state a target date. The relevant powers turn on the Agency’s own analysis of the situation and that analysis must, accordingly, be given weight.
2. The essence of the claim against the Agency is that, by its own analysis, setting a Target Date was necessary. It follows that, if its internal analysis is found to be coherent, the claim fails.
3. The Agency’s analysis recognised that the need for regulatory change was provisional. It did not go higher than the need to make a recommendation to ministers.
4. The Agency’s assessment of the need for regulatory change did not assess it as “a pressing imperative”.
5. The Agency had continued to advise that change was necessary.
6. It was, nevertheless, important to recognise that “full institutional resources and top prioritisation cannot be put behind every strand of environmental protection ”
7. It was reasonable for the Agency to consult with ministers and determine whether proposing the timeline from the earlier versions of the Sludge Strategy were realistic.
8. Adopting a new target date could be counter-productive or arbitrary: “What would the basis of that have been? The Agency could have taken such a date, with the objective of publicly putting the Department under renewed pressure to That could have undermined the working relationship between the two authorities.”

Analysis

The more intense standard of scrutiny applied in this case was previously reserved for individual rights. Fordham J’s use of language is important. Ordinarily the term “fundamental rights” and “human rights” are understood to mean something similar. The distinction is the source of the right (the former flow from common law – see UNISON – while the latter flow from international law). Fordham J, however, described a class of “fundamental rights, interest and values” which are similar (in terms of their impact on the standard of scrutiny) to “human rights”. This appears to expand the concept of “fundamental rights”.

Fordham also appears to adopt an approach to environmental law which brings English domestic law more into line with international law (where environmental rights are increasingly considered enforceable in a manner similar to traditional (“First Generation”) human rights. His analysis acknowledges that the distinction between “individual rights” and “public interests”, often employed in environmental matters, doesn’t always hold true. The individual can have a sufficiently important interest in environmental protection matters in a manner similar to that which they have in interests which are characterised as “rights”.

On a practical level, this will have implications for decision-makers. Where individual rights are involved, decision-makers have become used to conducting more thorough assessments before taking a decision (and, by extension, are able to justify those decisions to a higher standard). Decision-makers would now be well advised to consider applying that more rigorous approach to environmental matters. From a claimant’s perspective, public authorities will now not be able to expect the same deference from the courts in some environmental matters and may well be forced to justify the substance of their decision itself rather than relying on the breadth afforded to them by lighter touch applications of Wednesbury.

Sam Fowles is a public lawyer at Cornerstone Barristers who brings his expertise in judicial review, planning, human rights, regulatory law, information law, and public policy to his climate practice, equipping him to deal with all dimensions of climate litigation.