UK weighs ending cost shields for environmental challenges

Under the Aarhus convention, an individual who loses an environmental legal claim pays only £5,000 of the other side’s costs; an organisation pays only £10,000. The UK signed the environmental treaty into law in 2005. The Ministry of Justice is considering reforms that could remove that protection.

What do the current cost caps protect?

The convention guarantees the right to participate in democratic processes on environmental matters, including sewage pollution, new roads and datacentre developments. Under the convention, the caps keep challenges from becoming prohibitively expensive for individuals and public interest groups.

Takeaway: Current law limits the financial damage from an unsuccessful environmental challenge.

What could change for environmental challengers?

According to environmental lawyers, the Ministry of Justice has held private meetings with “select” stakeholders about removing the cost protections and moving the UK away from the convention. Possible changes include:

• Doubling cost caps at each stage of a challenge.
• Removing cost protection where a court finds a “misuse of judicial review”.
• Allowing groups that crowdfund legal challenges to face costs of up to 70% of the money they raise if they lose.

Environmental lawyers said they fear the private meetings signal an acceleration toward leaving the convention. The government denies that aim.

Takeaway: The options would increase or eliminate challengers’ financial protection.

What did the A47 dispute show?

Proposals to change environmental judicial reviews began under Keir Starmer’s government, which repeatedly referred to nature as a blocker to growth. Starmer singled out Dr Andrew Boswell as an example of the “nimbys and zealots” bringing “vexatious” legal claims that thwart growth.

Boswell’s case concerned the expansion of the A47 in Norfolk. The legal fight lasted two years, and he ultimately lost. The campaign was funded by £73,000 raised through crowdsourcing from 2,000 individuals.

Boswell said Starmer was “putting a target” on his back. He added that the A47 campaign, funded by £73,000 from 2,000 individuals, “brought the community together in Norfolk”.

Carol Day, a senior environmental solicitor at Leigh Day, said the changes would “bring environmental litigation almost to a halt”. She questioned the evidence for tighter rules: “If they had a bank of cases where they could point to legal action holding things up, I think we could try and have a sensible discussion about it. But we have nothing from them, no kind of hard and fast evidence.”

Takeaway: Day says the government has not produced evidence of litigation widely holding up development.

Would higher costs stop people from suing?

Sarah Finch, an environmental campaigner, brought a grassroots judicial review over an oil well in Surrey that changed UK climate law. She said the government’s proposals would have prevented her group from bringing the case.

Finch said: “If we ran the risk of paying the other side’s fees, we would have never brought this legal action. It’s completely despicable for the government to take this right away. It’s a proposal to restrict people’s access to environmental justice.”

Another environmental lawyer said the changes would “fundamentally undermine access to environmental justice deliberately” and leave “potentially really terrible decisions” unchallenged. The lawyer said: “Local community objectors are often at the cutting edge of challenges that expose widespread government failures in relation to national and international obligations.”

Takeaway: Higher costs would keep community objections out of court, critics say.

Could reform put the UK in breach of Aarhus?

Day said: “The UK government say they don’t want to leave the convention, but [potential changes] would put them in a very difficult position because they would be very significantly non-compliant with it.”

Kyle Lischak, the head of the environmental law charity ClientEarth UK, said:

“The right to challenge unlawful decisions is one of the few ways people can hold those in power to account …

“Whether it’s datacentres or intensive livestock production, people too often find their rights and their environment on the chopping block in favour of rapid industrial buildout – and these people need the safe, affordable route to court to protect themselves, and nature, that the law should guarantee them.”

Takeaway: Cost-cap reform could put the UK at odds with a treaty it adopted in 2005.

Can the government uphold the convention?

Niall Toru, a senior lawyer at Friends of the Earth, challenged the government’s diagnosis of slow growth. He said:

“The government seems determined to find someone to blame for slow growth, and environmental campaigners and community groups make an easy target. But nature isn’t holding the economy back. Floods, droughts, pollution and climate breakdown are costing people and businesses billions.

“These proposals will not fix those problems. Instead, they will make more people feel that decisions are being imposed on them without any meaningful way to challenge them.”

A government spokesperson said: “The government is committed to upholding its obligations under the Aarhus convention, including maintaining access to environmental justice that is not prohibitively expensive. There are no plans to remove costs protections for well-founded claims.”

The spokesperson did not address the proposed doubling of caps, exposure of up to 70% of crowdfunded sums or removal of protection for misuse of judicial review. The unresolved issue is what counts as a well-founded claim and what a challenger must pay if the claim fails. Any move to raise or remove the caps would put the government’s promise of accessible environmental justice to a practical test.

Takeaway: The government’s next move on costs protections will show whether community groups can still afford to challenge unlawful decisions.