In Griffin v South West Water  IRLR 15 the High Court had ruled that privatised water authorities were “emanations of the State” for the purposes of EU law such that the provisions of directives could be prayed in aid directly against them. On 10 January 2012, the Upper Tribunal decided to ask the Court of Justice of the European Union on the different but related question as to whether or not private water/sewage companies are ‘public authorities’ for the purposes of the Aarhus Convention as implemented in EU law (and thus liable to provide information under the Environmental Information Regulations (“EIR”)).
That means that the CJEU now has two references currently before it from the UK arising from EU Directives which seek to implement provisions of the 1998 (Aarhus) ‘Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters’. In the Fish Legal reference the CJEU is being asked about the definition of ‘public authority’ for Aarhus purpose. In the Edwards/Palikaropoulos reference from the UKSC the CJEU is being asked what is meant by ‘prohibitively expensive’ for the purposes of Aarhus.
The Aarhus Convention
The Convention’s recitals explain that:
“every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”
To give effect to that, its Article 4 provides a right of public access (including for NGOs) to ‘environmental information’ held by ‘public authorities’; Articles 6-8 provide a framework for public participation in environmental decision-making; and Article 9 requires access to court to challenge the legality of environmental decisions on a basis that is “fair, equitable, timely and not prohibitively expensive”.
EU implementation of Aarhus
The EU is a signatory to the Aarhus Convention. Several Directives give effect to it, including the Strategic Environmental Assessment (SEA) Directive 2001/42/EC and Article 2 of the Public Participation Directive 2003/35/EC, as well as the Access to Environmental Information Directive 2003/4/EC
Fish Legal: what is a ‘public authority’?
Article 2.2 of Access to Environmental Information Directive 2003/4/EC provides (applying the definition from the Aarhus Convention) that:
‘Public authority’ shall mean:
(a) government or other public administration, including public advisory bodies, at national, regional or local level;
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within (a) or (b).
In England and Wales the access to environmental obligations are implemented through the EIR regulations. They sit alongside the Freedom of Information Act 2000 regime, but impose obligations on ‘public authorities’ (following the Directive) rather than adopting the 2000 Act approach of listing the categories of information-providing bodies.
Fish Legal represents anglers who collectively have nationwide interests in water quality. It sought information from United Utilities Water plc and Yorkshire Water Services Ltd relating to discharges, clean-up operations, and emergency overflow. The companies eventually provided all the information requested but not within the time limits that would apply if the companies were public authorities on without accepting an obligation to do so.
Fish Legal applied to the Information Commissioner for a decision under section 50(1) of the Freedom of Information Act 2000, as modified by regulation 18 of the Environmental Information Regulations 2004. The Commissioner decided that the companies were not public authorities for the purposes of the Regulations.
Fish Legal appeal to the First-tier Tribunal was stayed to await the decision of the Upper Tribunal in the Smartsource v Information Commissioner  UKUT 415 (AAC). In that case, the UT held that the water companies were not public authorities, but it did so essentially by reference to domestic law considerations only and without considering the questions of EU law which clearly arise. Smartsource did not pursue an appeal.
Fish Legal (along with an individual appellant, Emily Shirley) has now persuaded a second UT to refer to the CJEU questions including how it should decide what are ‘public administrative functions’ and what is meant by ‘under the control of’ 2003/4/EC. All parties recognise that those issues have potentially much wider effect, touching as they do on the question of whether a great many privatised utility companies fall within the ambit of the EU (and indeed Aarhus) rights of public access to environmental information.
The Aarhus Implementation Guide explains that privatisation of utilities should not have the effect of removing them from that regime. But the UT in Smartsource considered that such thinking did not sufficiently give effect to the particular scheme of privatisation adopted here. It remains to be seen whether sewage pollution levels in England and Wales can (perhaps uniquely in the EU) be kept out of the public eye.
Edwards/Palikaropoulos: What is meant by ‘prohibitively expensive’?
The Environmental Impact Assessment Directive 85/337 (which requires that major development is subject to a public process of environmental assessment prior to approval) was amended to ensure its Aarhus compliance by including a new Article 10a:
“Member states shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.” [underlining added]
The UK has argued that the ordinary costs rules of judicial review, coupled with the availability of legal aid and Protective Costs Orders mean that judicial review is not ‘prohibitively expensive’.
With the benefit of legal aid, David Edwards brought a judicial review challenge to the legality of a permit granted by the Environment Agency for the burning of waste tyres as fuel in a cement plant. Among other things, he argued that there had been a breach of the requirements of the EIA Directive. His challenge was dismissed:  EWHC 657 (Admin),  Env L R 3. So too was his appeal to the Court of Appeal:  EWCA Civ 1138. He then dropped out of the litigation but Lilian Palikaropoulos, who was not eligible for legal aid, was added as a claimant, and appealed to the House of Lords. Her appeal failed:  UKHL 22,  Env LR 34. The Environment Agency and DEFRA (also a respondent) have then sought some £80,000 of costs against her. She resists an order that she pay those costs, arguing that would be ‘prohibitively expensive’ and thus in breach of Article 10a of the EIA Directive.
In R (Garner) v Elmbridge Borough Council  EWCA Civ 1006, the Court of appeal had held that, at least for development falling within the ambit of the EIA Directive, the court was required to make costs orders which prevented the proceedings being prohibitively expensive. But Sullivan LJ said this:
“This raises an important issue of principle. Should the question whether the procedure is or is not prohibitively expensive be decided on an ‘objective’ basis by reference to the ability of an ‘ordinary’ member of the public to meet the potential liability for costs, or should it be decided on a ‘subjective’ basis by reference to the means of the particular claimant, or upon some combination of the two bases?”
Because the costs order in question here was in House of Lords proceedings, the appeal against the assessment was directly heard by a 5 judge panel of the Supreme Court. Referring to the issue identified by Sullivan LJ, Lord Hope explained that “it cannot be said to be so obvious as to leave no reasonable scope for doubt as to the manner in which the question would be resolved: CILFIT (Srl) v Ministry of Health (Case C-283/81)  1 CMLR 472.” So, on 15 December 2010, the court decided it must refer the issue to the Court of Justice of the European Union for a preliminary ruling under article 267 TFEU (ex article 234 EC):  UKSC 57. That process is now underway.
Meanwhile the EU Commission has also commenced infraction proceedings against the UK. And the Aarhus Compliance Committee has found the UK to be in breach of the Convention. Perhaps fearing further defeat, DEFRA (the relevant Government Department) has recently consulted on costs rules for new PCO regime for environmental judicial reviews. Although it provides a more ‘objective’ framework, it remains steadfastly ‘subjective’ (for example, by allowing defendants to apply to raise the £5,000 benchmark costs liability of a claimant on the basis that the particular claimant should risk more). It remains to be seen whether the final scheme retains that element. And whether, in due course, such an approach remains’ prohibitively expensive’ as explained by the CJEU.