Why are environmentalists suddenly interested in international consultation obligations?
The UK Government has been scratching its head since they received word from a United Nations committee, advising them to suspend work on Hinkley Point C, a nuclear power station in Somerset. The Government has been accused of not notifying neighbouring countries of its intention to build this power station, thereby neglecting its obligations to consult these countries. It is highly questionable whether the UK Government will actually follow the UN’s suggestion as it is convinced there was no requirement to consult, but it does raise some questions about its commitment to international treaties.
I sat in on a High Court hearing back in 2014 when An Taisce, Ireland’s equivalent of the National Trust, legally challenged the British Government’s decision to grant permission to build the contentious power plant. The challenge revolved around the issue of the UK Government not having consulted neighbouring countries, such as Norway, the Netherlands, Austria, and Germany under the Espoo Convention. This international treaty obliges its signatory countries to consult their neighbours when there is a significant transboundary environmental impact. In the Court, the UK Government denied that there would ever be such a risk as all the necessary precautions were taken to prevent this from happening. The Court agreed and dismissed the claim, finally ending up in the Supreme Court which also dismissed the claim. The UN Committee, however, has a different view.
Unlike the Aarhus Convention, which requires public bodies to consult the public on proposals affecting the environment, the Espoo Convention casts out a wider net and is often used by NGOs to question the validity of major developments. In the Hinkley Point C case, several foreign Governments argue that they should have been (officially) notified of the proposed power station to discuss the potential environmental impacts of a future incident at the £18bn Somerset plant and to contribute (as consultees) to an Environmental Impact Assessment.
Both the Espoo and the Aarhus Conventions are not legally binding in themselves, but both have been transposed in EU regulations, thus making them legally binding. Last year, the same UN Committee determined that the UK was in breach of its international obligations and should start consulting its neighbouring countries but has chosen not to act on it. It is naïve to think it would be any different now. It should be noted that the UK has been in breach of the 3rd pillar of the Aarhus Convention ever since it joined, in 2005, as it has consistently been accused of not providing reasonable access to the Courts for those who wish to challenge adherence to the rights for environmental impact information and for public participation and consultation. The Aarhus Compliance Committee is expected to share its findings on the HS2 project whereby several ‘members of the public’, including a London Borough, argue that there has been a lack of consultation on the very controversial rail line.
Although it is difficult to envisage what a post-Brexit Britain would look like once it has separated from the EU, many legal environmental experts agree that the two Conventions will be even more important to safeguard people’s rights to have their voices heard in planning projects. British planning laws already require project promoters to consult at several stages in the process but it does not require them to consult neighbouring countries. The Espoo Convention, however, does! Will the UK Government comply with these international obligations once it has left the EU? If it doesn’t it is bound to provoke a major row with campaigning groups both in the UK and abroad.