The development, regulation and enforcement of water pollution law - a participatory role for individuals and environmental groups?

This thesis examines participation by individuals and environmental groups in the present system of environmental law by focusing on water pollution law. The objectives are to ascertain whether the current law on water pollution as contained in the common law and statutory law adequately provides for public participation, whether the enforcement of water pollution legislation by the National Rivers Authority (NRA) is so effective as to make public participation unnecessary, and finally, whether them are practical limitations on public participation in terms of the availability and accessibility of expertise in environmental law. This thesis seeks to discuss the various avenues of public participation in water pollution law in the UK and the problems associated with them, as well as mentioning some proposals for reform which may provide for more effective participation by individuals and environmental groups. The common law of torts is examined as a means of protection of the water environment. A review of recent case law demonstrates the uncertain unpredictable nature of common law principles. Also, as only a limited range of persons with private rights can bring actions at common law, the present law of torts does not seem to be an adequate means of participation for individuals Or environmental groups. The development of statutory and administrative regulation of water pollution demonstrates that whilst the concern of legislators has been mainly to create substantive law which would prohibit water poHution and to create bodies which could effectively enforce the legislation, the Control of Pollution Act 1974 provided for a participatory role for the public. Since then they have been able to participate in the control of water pollution through the discharge consent system, have been able to bring private prosecutions against polluters, and obtain more easy access to environmental information through public registers on water pollution. It appears that at present the most unrestricted way in which individuals and environmental groups can participate in the enforcement of water pollution law is through private prosecutions as there is no need to establish private rights or standing. Public participation through private prosecutions has been facilitated by public registers on water poilution. As private prosecutions can play an important role in supplementing enforcement by public bodies such as the NRA or the proposed Environment Agency, individuals and environmental groups need to be made more aware of the possibility of bringing private prosecutions against polluters and of obtaining access to environmental information. Judicial review is another means for the public to participate in the enforcement of environmental legislation by ensuring that regulatory agencies are properly enforcing the legislation. Locus standi, however, still poses a hurdle especially to environmental groups with a general interest in environmental protection. Case law demonstrates that courts are recently taking a more liberal approach to the standing of environmental groups in judicial review cases. Even if judicial review cases do not result in a successful outcome for the environmental group, the recognition of standing by courts is still a victory as it emphasises the importance of enabling them to participate in the enforcement process and may trigger public bodies into properly carrying out their duties. The NRA's enforcement and prosecution policy is examined in order to assess whether there is a lack of effectiveness on its part in enforcing the legislation which could support the argument for greater public participation in the enforcement process. The NRA's prosecution policy and the low proportion of reported and substantiated pollution incidents actually prosecuted seem to indicate that the NRA does not carry out its role as effectively as could be hoped for. It appears, therefore, that the significance of a supplementary role for individuals and environmental groups should be recognised and given greater emphasis in future, and that the great reliance placed by the public upon a public body to control water pollution needs to change. An analysis is undertaken of the responses of questionnaires sent to and interviews conducted with solicitors in Preston. Manchester and London in order to ascertain the availability and accessibility of expertise in environmental law to individuals at a practical level. An assessment of the data collected leads the author to conclude that there appears to be a lack of legal practices wiffing and able to advise or take on environmental cases on behalf of ordinary citizens as opposed to commercial clients. The role played by the Environmental Law Foundation in making legal practices with expertise in environmental law more available to ordinary citizens and local residents groups is also discussed. Proposals for expertise in environmental law at a judicial level by the creation of an environmental court or tribunal which could encourage the public to pursue avenues of legal redress in relation to environmental cases is also examined.