Locus Standi in Environmental Torts and the Potential Influence of Human Rights Jurisprudence

• DOI: http://doi.org/10.1111/1467-9388.00370
• Date: 01 November 2003
• Published date: 01 November 2003
• Author: Mark Wilde

© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

RECIEL 12 (3) 2003. ISSN 0962 8797

284

Locus Standi

in Environmental Torts

and the Potential Inf‌luence of

Human Rights Jurisprudence

Mark Wilde

INTRODUCTION

The debate regarding the role of civil liability as a

means of environmental protection has been running

for many years and shows no signs of running its

course, as certain States press ahead with environ-

mental liability regimes and the European Community

continually shifts position. One of the central themes

that has yet to be fully resolved concerns which parties

should be in a position to take action in respect of

environmental harm. Existing private-law mechan-

isms focus on individual loss, be it in the form of

personal injuries or damage to property. This imme-

diately limits the class of persons who may claim and

focuses attention on the individual loss rather than the

wider environmental harm. For example, members of

the family home, other than the person enjoying title

to the property, may be excluded from the protection

afforded by the property torts, such as private and

public nuisance, and trespass to land due to their

lack of title. This theme links into a broader debate

in that, beyond the family home, there is clearly

limited capacity for individuals, or other interested

parties, to seek remedies in respect of damage to the

wider environment.

This issue is discussed within a wider European Union

(EU) context, namely the long-running debate regard-

ing the necessity for a European civil liability regime

for environmental damage. These proposals culmin-

ated in a White Paper

1

setting out a regime designed

to overcome many of the drawbacks associated with

the use of tort in this context. This included a proposal

to afford standing to non-government organizations

(NGOs) to seek a remedy where there was no private

party able or willing to act. The issue of standing is

crucial in this debate in that the effect of a regime

would be limited if access to remedies was limited to

traditional categories of claimant. In the USA, for

example, the courts have been prepared to adopt a

more liberal view of standing within the context of

environmental legislation.

2

However, as will be seen,

in subsequent proposals, the EU appears to have back-

tracked on this original idea. The reasons for this

uncertain state of affairs will be addressed below.

Furthermore, as might be expected, human rights

jurisprudence is likely to have a major effect on the

standing debate, as any restriction that appears to

restrict access to justice could fall foul of Article 6 of

the European Convention for the Protection of Human

Rights and Fundamental Freedoms (1950) (ECHR) on

the right to an effective judicial remedy.

LOCUS STANDI

IN PRIVATE

NUISANCE

In most jurisdictions, neighbourhood disputes are

regarded as property disputes, with the result that

parties enjoying

locus standi

are limited to those with

a suff‌icient interest in the land. In common-law juris-

dictions, the tort of nuisance maintains close historic

links with land and the protection of interests therein.

In the leading English case of

Malone v. Laskey

it was

held that no principle of law can be formulated ‘to the

effect that a person who has no interest in property,

no right of occupation in the proper sense of the term,

can maintain an action in nuisance’

3

in respect of

neighbouring land uses. The US common law of tort

preserves many aspects of English law, although, as

will be seen below, there has been some relaxation of

standing requirements in respect of loss caused by

pollution. In Canada, the common law tends to adhere

more closely to original English principles, however,

provinces may disagree as to the correct interpreta-

tion of an existing principle.

4

In civil jurisdictions,

including Germany and France, civil codes include

provisions on neighbourhood disputes or

troubles de

1

Commission of the European Communities White Paper of 9 Feb-

ruary 2000 on Environmental Liability, COM (2000) 66 f‌inal.

2

See, for instance,

Friends of the Ear th v. Laidlaw Environmental

Services

, 120 SCt 693 US (2000).

3

[1907] 2 KB 141, per Sir Gorell Barnes P., at 151.

4

See, for instance,

Devon Lumber Co. v. MacNeill

, (1987) 45 DLR

(4th) 300 (hereinafter

MacNeill

).