Environmental justice isn’t just for the green zealots, it affects us all
It is the stuff of a thousand scripts, from Hollywood hits like Local Hero to the more mundane soap operas and children’s series.
The struggle of small communities against big business wanting to build a polluting factory, or dig a mine, or erect flats over a beloved playground. And in the end, on our screens at least, the little guys always win once the evil developer is won around to their cause.
The reality of course for the millions of us who live near things like factories, motorways, even wind farms, that affect our environmental amenity, or who suddenly face having that amenity dramatically curtailed by the arrival of a major development, is that more often than not, the little guy doesn’t win.
Armed with huge resources, sharp-suited lawyers and PR people and more often than not, with compliant government at various levels on board, it is the top end of town that usually comes away happy.
This kind of issue is set to become one of the features of our time, as pressure on resources and space grows ever more intense.
The struggle for what campaigners call environmental justice is one common to both urban and rural areas. Naturally, it is the big projects that get the most attention – local community anger at American entrepreneur Donald Trump’s plan to turn the Menie Estate in Aberdeenshire into an international golf resort or the campaign against the Lewis windfarm – but all over the country, there are literally hundreds of disputes going on at any one time.
What do we mean by the term environmental justice, though?
Mark Poustie is a Professor of Law at Strathclyde University with a keen interest in environmental law. He says: “What the term means to me is that no community at national level or people at international level should be subjected to disproportionate amounts of pollution or should have disproportionately less access to environmental goods. At national level that could be green space or it could be drinking water.
“That’s the kind of substantive dimension of it. There is also what is also usually described as a procedural dimension that communities should have effective means of participating in decision making that affects their environment, access to information, opportunities to make representation and arguably also, access to justice beyond that.” Poustie argues that for local communities seeking to stop new developments, or try and have existing facilities – like opencast mines – shut down, the current regulatory framework should provide sufficient means to fight their cases. Poustie undertook research for the Scottish Environmental Protection Agency (SEPA) in 2004 to examine this issue.
“I argued the existing legal and regulatory framework could be used to address local environmental conditions and injustices.
Through its day-to-day regulation, SEPA could set appropriate standards, taking into account the cumulative impact of a number of industries in an area.
“In the longer term, the planning system has a very big role in this through processes like the Strategic Environmental Assessment of development plans whereby the input from SEPA and health boards into the likely cumulative impacts of the development of a range of industries on communities and that could then inform decision making down the line in relation to particular development applications,” he says.
But for those working at the sharp end of the law, the situation can seem quite different.
Frances McCartney is a lawyer with the Scottish Environmental Law Centre and has represented a number of groups and communities fighting for what they see as environmental justice.
She argues the law as it stands makes it very difficult for individuals and community groups to challenge decisions or developments, especially when faced with the potential for being responsible for crippling costs if they lose their action.
“There are structural issues about the difficulty of challenging decisions and the lack of availability of access to court remedy.
That falls into two categories. There are issues to do with who can bring a challenge to environmental decisions, so who can challenge a public body, and that is called Title and Interest to Sue. Quite often, Title and Interest to Sue has been around private rights rather than more public interest rights.
It can mean that a community group that is acting in what they think is the best interest of the community can be prevented from bringing an action in court,” she says.
Yet there may be some hope. Lord Gill’s review of civil justice in Scotland has called for a widening of the parameters of the test for title. Yet the issue of potential liability remains, and McCartney argues that we would do well to follow our neighbours south of the border and institute a principle of limited liability to address this issue.
She says: “On Title and Interest, Lord Gill has agreed that the current test is too restrictive and that he has recommended it should be replaced. On the second point, what our submissions were relating to is the fact that in England they have a system called protective cost orders which means at the beginning of the case, the judge will say, this is an issue of public importance, so we are going to make an order restricting the liability of the community or voluntary group taking the action if they lose.
“In Scotland, the usual rule is expenses follow success and that’s usually dealt with at the end of the case. That’s the chilling fear of expenses being given against you, that’s very nerve wracking and generally speaking, legal aid is not available for issues of public interest, wrongly, in my view.” Douglas Peacock is chairman of the North Kelvin Meadow Campaign; a community group that is trying to save a green space in Glasgow’s West End from being sold by the council and turned into flats by a developer.
“Basically we just cleaned up an area of land that has always been used by the local community. The council has let the land fall derelict. We’ve been planting some raised beds and some fruit trees. It’s used by the whole community now,” he says.
But Peacock and another campaigner are currently subject to legal action from the council, who claim they are using the land illegally. But Peacock says the council has not made efforts to communicate with the community about the use of the space.
“Our first meeting with the council was in the court. They refused to meet us because they say they just want to sell the land and they are not interested in talking to us, their mind has been made up,” he says.
The issue of green space in urban areas is one that crops up again and again. But there are other areas where environmental justice takes on a different dimension. Community groups in North Ayrshire are angry that a new coal-fired power station is being planned for the Hunterston coal region.
Under the National Planning Framework, the overarching document for planning in Scotland, the development has been designated a ‘National Development’ under its terms.
“An environmentally just planning system requires decisions to be made using a process where every perspective is looked at, difficult issues are aired and discussed, and potential or real problems are addressed. The system has to be inclusive, transparent and accountable. The National Planning Framework is Scotland’s most influential planning document, which names in it large national developments proposed for Scotland. However, one of the challenges the Government face is to run a truly participative process of consultation that involves people in shaping these national strategic decisions.
“Residents in North Ayrshire feel the Government have not achieved the standards of community engagement required by European law on the National Planning Framework. They are currently taking legal action because they feel that the procedures required to make them aware of the plans for a coal-fired power station in Hunterston were not followed correctly,” says Clare Symonds of Planning Democracy, which is opposing the power station.
She continues: “The planning system offers huge opportunities to help to ensure Scotland achieves environmental justice. Public participation in this system creates better checks and balances on power, protecting people and the environment and making society stronger. However, a truly participatory system requires government to act as enablers as well as enforcers and regulators.
“Planning Democracy believes that government have to be truly committed to this participatory system and put in the resources to achieve it. It cannot be left to chance for people to find out about major developments such as Hunterston in their area. The Government have to take pro-active action to encourage participation. Decisions might sometimes take longer to reach but the participatory approach is ultimately more efficient because it ensures robust decision making and also builds trust in decision makers.” But the Hunterston debate throws into clear relief the conflict at the heart of many environmental justice struggles. We do have to face the reality that if we want to live in a modern industrial society, with all that entails, like plasma screen TVs and home heating, that we need to get the materials and resources to make that possible from somewhere.
As David Lonsdale of the Confederation of British Industry Scotland points out, often we cannot choose where we get these materials from.
“The first point I would make is that a lot of these sorts of things, like opencast mines, are almost always reliant on geology, they can only be accessed where they are commercially viable. That unlike other forms of development, they are much more limited in where they can be.
“The reality is that we all want our kids to go to good schools, we all want access to good hospitals, we all want roads and other infrastructure of a modern standard and capacity. At the end of the day whether it is those things, or providing the funding means for private or social housing or other forms of infrastructure, we need to be able to have different types of resource extraction,” he says.
Lonsdale also makes the unavoidable point that many activities that are detrimental to the environmental amenity of locals also, paradoxically, provide an economic lifeline for those same areas. Hundreds, thousands of jobs, can be reliant on these facilities.
The key is to find a balance that is acceptable to all concerned. It may not be the ideal outcome for anyone, but compromises rarely are.