Null

A Critical Analysis of
the Contribution to Sustainable Development of

the Law and Practice on Public Participation in
the Authorisation of Radioactive Waste Disposal
Joseph Hoe Kiat Chun
A thesis submitted in fulfilment of

the requirements for the award of the degree of
Doctor of Philosophy
University College London
2002
1
Abstract
The thesis critically analyses the fairness and competence of aspects of the law
and practice relating to public participation in the Environment Agency’s
authorisation of radioactive waste disposal. It argues that the primary objective
of environmental decision-making is to make a contribution to sustainable
development, and that sustainable development is best understood as a
conception of distributive justice. It then examines, from a procedural
perspective, the contribution to sustainable development made by the Agency’s
decisions to authorise the disposal of radioactive waste at Atomic Weapons
Establishments at Aldermaston and Burghfield, at eight magnox power stations
throughout England and Wales, and at the Berkeley Centre; and of its re-
examination of the authorisations for disposal of radioactive wastes from
Sellafield. The insight offered by the empirical examination is that while the law
imposes on administrative decision-makers a minimum standard of fairness and
competence in public participation, it also inhibits in some important respects,
the further development of a practice towards fairer and more competent
participation, thereby indirectly constituting an ‘upper limit’ to the further
contribution of environmental decision-making to sustainable development.
2
Table of Contents
ABSTRACT......................................................................................................... 2
TABLE OF CONTENTS ...................................................................................... 3
TABLE OF CASES ............................................................................................. 8
TABLE OF UNITED KINGDOM STATUTES .................................................... 12
TABLE OF STATUTORY INSTRUMENTS ....................................................... 13
TABLE OF EUROPEAN UNION INSTRUMENTS ............................................ 14
TABLE OF INTERNATIONAL INSTRUMENTS................................................ 15
PART ONE :: UNDERSTANDING THE CONTRIBUTION OF PUBLIC

PARTICIPATION TO THE QUALITY OF ENVIRONMENTAL DECISIONS ..... 16
CHAPTER 1: AN OVERVIEW OF THE THESIS............................................... 17
CHAPTER 2: THE ETHICAL FOUNDATION OF ENVIRONMENTAL

DECISION-MAKING ......................................................................................... 28
THE NATURE OF ENVIRONMENTAL CONCERN....................................................... 28

Anthropocentric Environmental Ethics........................................................ 28
Valuing Nature for its Own Sake ................................................................ 39
Biocentrism ............................................................................................. 40
Ecocentrism ............................................................................................ 41
Deep Ecology...................................................................................... 44
NON-ANTHROPOCENTRIC APPROACHES TO ENVIRONMENTAL DECISION-MAKING ..... 47
ANTHROPOCENTRIC ENVIRONMENTAL LAW AND DECISION-MAKING ........................ 49
International Law on Nature Conservation ................................................. 50
Animal Welfare and Nature Conservation in England ................................ 54
CONCLUSION .................................................................................................... 59
CHAPTER 3: SUSTAINABLE DEVELOPMENT AS JUSTICE ........................ 61
THE EMERGENCE OF SUSTAINABLE DEVELOPMENT .............................................. 61

SUSTAINABLE DEVELOPMENT AS DISTRIBUTIVE JUSTICE ....................................... 70
3
Justice Versus Humanity ............................................................................ 71
Intra-generational Justice ........................................................................... 73
Meeting Basic Needs .............................................................................. 74
Satisfying Aspirations for a Better Life .................................................... 76
Intergenerational Justice ............................................................................ 77
The Interdependence between Intra-generational and Intergenerational
Justice ........................................................................................................ 79
MOTIVATION FOR SUSTAINABLE DEVELOPMENT ................................................... 81
The Common Interest................................................................................. 81
CONCLUSION .................................................................................................... 84
CHAPTER 4: PUBLIC PARTICIPATION’S CONTRIBUTION TO

SUSTAINABLE DEVELOPMENT..................................................................... 87
SUSTAINABLE DEVELOPMENT AND PUBLIC PARTICIPATION .................................... 88

The Exercise of Ethical Judgements .......................................................... 91
The Social Construction of Knowledge....................................................... 95
Contribution to Scientific Knowledge....................................................... 97
Contribution to Local and Contextual Knowledge ................................. 106
Contribution to Evidentiary Judgements ............................................... 107
CONCLUSION .................................................................................................. 111
PART TWO :: ASSESSING PUBLIC PARTICIPATION IN THE

AUTHORISATION OF RADIOACTIVE WASTE DISPOSAL .......................... 113
CHAPTER 5: SUSTAINABLE DEVELOPMENT AND THE REGULATION OF

RADIOACTIVE WASTE DISPOSAL IN ENGLAND ....................................... 114
TRANSPOSING SUSTAINABLE DEVELOPMENT INTO A NATIONAL STRATEGY............ 114

SUSTAINABLE DEVELOPMENT IN THE UNITED KINGDOM....................................... 115
The EU Influence...................................................................................... 116
The National Sustainable Development Strategies .................................. 122
This Common Inheritance..................................................................... 122
A Better Quality of Life .......................................................................... 125
THE ENVIRONMENT AGENCY’S CONTRIBUTION TO SUSTAINABLE DEVELOPMENT ... 127
Costs and Benefits ................................................................................... 130
THE AUTHORISATION OF RADIOACTIVE WASTE DISPOSAL ................................... 132
4
PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISION-MAKING BY THE ENVIRONMENT
AGENCY......................................................................................................... 135
CONCLUSION .................................................................................................. 137
CHAPTER 6: AN OVERVIEW OF THE CASE STUDIES AND METHOD OF

STUDY ............................................................................................................ 139
THE CASE STUDIES ........................................................................................ 139

The AWE Decision ................................................................................... 139
The Magnox Decision............................................................................... 141
The Sellafield Decision ............................................................................. 141
THE CRITERIA FOR EVALUATING PUBLIC PARTICIPATION ..................................... 143
Fair Public Participation............................................................................ 146
Attendance............................................................................................ 146
Agenda and Rules ................................................................................ 148
Facilitator/Moderator ............................................................................. 148
Competent Public Participation ................................................................ 149
Theoretical Discourse ........................................................................... 151
Practical Discourse ............................................................................... 153
THE INHERENT LIMITATIONS OF PUBLIC PARTICIPATION ...................................... 154
FAIR AND COMPETENT PUBLIC PARTICIPATION AS AN APPROXIMATE INDICATOR OF
SUBSTANTIVE QUALITY OF ENVIRONMENTAL DECISION-MAKING ........................... 157
CHAPTER 7: THE FAIRNESS OF PUBLIC PARTICIPATION IN THE

(A) ATTENDANCE ....................................................................................... 159

Radioactive Substances Act 1993............................................................ 159
Local Inquiry ......................................................................................... 160
Common Law ........................................................................................... 163
European Convention for the Protection of Human Rights and Fundamental
Freedoms ................................................................................................. 167
Aarhus Convention................................................................................... 172
Environment Agency Practice .................................................................. 176
Local Inquiry ......................................................................................... 179
(B) AGENDA AND RULES............................................................................. 180
Local Inquiry ......................................................................................... 182
5
Common Law ........................................................................................... 184
Freedoms ................................................................................................. 187
(C) FACILITATOR/MODERATOR .................................................................... 193
Common Law ........................................................................................... 194
Freedoms ................................................................................................. 195
CONCLUSION .................................................................................................. 201
CHAPTER 8: THE COMPETENCE OF PUBLIC PARTICIPATION IN THE

(A) THEORETICAL DISCOURSE .................................................................... 207

Statutory Requirements............................................................................ 207
Access to Information ........................................................................... 207
Knowledge Construction ....................................................................... 210
Common Law ........................................................................................... 212
European Convention on Human Rights and Fundamental Freedoms .... 214
(B) PRACTICAL DISCOURSE ........................................................................ 231
Statutory Requirements............................................................................ 231
Common Law ........................................................................................... 234
6
European Convention on Human Rights and Fundamental Freedoms .... 237
CONCLUSION .................................................................................................. 249
CHAPTER 9: TOWARDS FAIRER AND MORE COMPETENT PUBLIC

PARTICIPATION IN DECISION-MAKING ...................................................... 256
BIBLIOGRAPHY ............................................................................................. 264
OFFICIAL DOCUMENTS AND REPORTS ............................................................... 264

BOOKS AND ARTICLES ..................................................................................... 270
7
Table of Cases
Albert & Le Compte v. Belgium (1983) 5 EHRR 533.

Associated Provincial Picture Houses Ltd. v. Wednesbury Cor[1948] 1 KB 223.
Athanassoglou & Ors. v. Switzerland (2001) 31 EHRR 13.
Balmer-Schafroth & Ors. v. Switzerland (1998) 25 EHRR 598.
Bates v. Lord Hailsham of St. Marylebone [1972] 3 All ER 1019.
Berkeley v. Secretary of State for the Environment & Ors. [2000] 3 WLR 420.
Benthem v. The Netherlands (1986) 8 EHRR 1.
Binney & Anscomb v. Secretary of State for the Environment & Secretary of
State for Transport [1984] JPL 871.
Board of Education v. Rice [1911] AC 179.
Brind & ors. v. Secretary of State for the Home Department [1991] 1 All ER 720.
Bugdaycay v. Secretary of State for the Home Department [1987] AC 514.
Bryan v. UK, (1995) 21 EHRR 342.
Bushell & anor. v. Secretary of State for the Environment [1981] AC 75.
Campbell & Fell v. UK (1985) 7 EHRR 165.
Commission of the European Communities v. Federal Republic of Germany,
Case C-57/89, [1991] ECR I-883.
Commission of the European Communities v. Italy, Case 92/79, [1980] ECR
1115.
Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180.
Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER
935.
Doody v. Secretary of State for the Home Department [1993] 3 All ER 92.
Emanuela Marchiori v. Environment Agency [2002] EWCA Civ 3.
Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 2 All
ER 865.
Fischer v. Austria (1995) 20 EHRR 349.
Friends Provident Life & Pensions Ltd. v. Secretary of State for Transport, Local
Government and Regions [2001] EWHC Admin 820.
Ford v. Wiley (1889) 23 QBD 203.
Fredin v. Sweden (1990) 13 EHRR 784.
Greenpeace Schweiz & Ors. v. Switzerland (1997) 23 EHRR CD 116.
Guerra & Ors. v. Italy (1998) 26 EHRR 357.
8
Hatton & Ors. v. UK (2002) 34 EHRR 1.
König v. Germany (No. 1) (1979-80) 2 EHRR 170.
Kraska v. Switzerland (1994) 18 EHRR 188.
Laura Cummins & Ors. v. London Borough of Camden & Secretary of State for
the Environment Transport and the Regions [2001] EWHC Admin 1116.
H Sabey & Co. Ltd. v. Secretary of State for the Environment & ors. [1978] 1 All
ER 586.
Leander v. Sweden (1987) EHRR 433.
Lloyd v. McMahon [1987] AC 625.
Lopez Ostra v. Spain (1994) 20 EHRR 277.
Mahon v. Air New Zealand Ltd. & ors. [1984] 3 All ER 201.
McGinley & Egan v. UK (1999) 27 EHRR 1.
Merlin v. British Nuclear Fuels plc [1990] 2 QB 557.
O’Reilly v. Mackman [1983] 2 AC 237.
Piersack v. Belgium (1983) 5 EHRR 169.
Powell & Rayner v. UK (1990) 12 EHRR 355.
Puhlhofer & anor. v. Hillingdon London Borough Council [1986] 1 All ER 467.
R. v. Bow Street Metropolitan Stipendiary Magistrate & ors., ex p. Pinochet
Ugarte (No 2) [1999] 1 All ER 577.
R. v. Durham County Council & ors., ex p. Huddleston [2000] 1 WLR 1484.
R. v. Environment Agency, ex p. Marchiori & NAG Ltd. [2001] EWHC Admin 267.
R. v. Gaming Board for Great Britain, ex p. Kingsley, (CO/2506/94), 11th January
1996, unreported.
R. v. Gough [1993] AC 646.
R. v. Her Majesty’s Inspector of Pollution & anor., ex p. Greenpeace Ltd. (No. 2)
[1994] 4 All ER 329.
R. v. Local Government Board, ex p. Arlidge [1015] AC 120.
R. v. Ministry of Defence, ex p. Smith, [1996] QB 517.
R. v. Panel of Take-overs and Mergers, ex p. Guinness plc [1989] 1 All ER 509.
R. v. Secretary of State for the Environment & anor., ex p. Kirkstall Valley
Campaign Ltd. [1996] 3 All ER 304.
R. v. Secretary of State for the Environment & Ors., ex p. Greenpeace & anor.
[1994] 4 All ER 352.
R. v. Secretary of State for Foreign Affairs, ex p. World Development Movement
[1995] 1 All ER 611.
9
R. v. Secretary of State for Trade and Industry, ex. p. Duddridge [1995] Env LR
151 (HC)
R. v. Secretary of State for Trade and Industry, ex p. Duddridge [1996] Env LR
325 (CA).
R. v. Secretary of State for Transport, ex p. London Borough of Richmond upon
Thames [1995] Env LR 390.
R. v. Secretary of State for Transport, ex p. Richmond upon Thames London
Borough Council & ors. (No. 4) [1996] 4 All ER 93 (HC).
R. v. Secretary of State for Transport, ex p. Richmond upon Thames London
Borough Council & ors. (No. 4) [1996] 4 All ER 903 (CA).
R. v. Somerset County Council, ex p. Fewings & ors [1995] 3 All ER 20.
R. v. Swale Borough Council & anor., ex p. Royal Society for the Protection of
Birds [1991] JPL 39.
R. (Friends of the Earth Ltd. & Greenpeace Ltd.) v. Secretary of State for the
Environment, Food and Rural Affairs & Secretary of State for Health [2001]
EWHC Admin 914.
R. (on the application of Adlard & Ors.) v. Secretary of State for Environment,
Transport & Regions [2002] EWCA Civ 671.
R. (on the application of Aggregate Industries UK Ltd.) v. English Nature & the
Secretary of State for the Environment, Food and Rural Affairs [2002] EWHC
Admin 908.
R. (on the application of Alconbury Developments Ltd.) v. Secretary of State for
the Environment, Transport and the Regions & other cases [2001] 2 All ER
929.
R. (on the application of Vetterlein) v. Hampshire County Council & Ors. [2001]
EWHC Admin 560.
Re Friends of the Earth [1988] JPL 93.
Re H. K. (An Infant) [1967] 2 QB 617.
Ridge v. Baldwin [1964] AC 40.
Ringeisen v. Austria (No. 1) (1979-80) 1 EHRR 455.
Russell v. Duke of Norfolk [1949] 1 All ER 109.
Schuler-Zgraggen v. Switzerland (1993) 16 EHRR 405.
Sinfield & Ors. v. London Transport Executive [1970] 2 All ER 264.
X v. Switzerland, App. No. 9000/80 (1982) 28 D & R 127.
World Wildlife Fund & Ors. v. Autonome Provinz Bozen & Ors., Case C-435/97,
10
[1999] ECR I-5613.
Zander v. Sweden (1994) 18 EHRR 175.
Zumtobel v. Austria (1994) 17 EHRR 116.
11
Table of United Kingdom Statutes
Countryside and Rights of Way Act 2000.

Environment Act 1995.
Food Standards Act 1999.
Freedom of Information Act 2000.
Health and Safety at Work Etc. Act 1974.
Highways Act 1980.
National Parks and Access to the Countryside Act 1949.
Nuclear Installations Act 1965.
Protection of Animals Act 1911.
Radioactive Substances Act 1993.
Town and Country Planning Act 1990.
Wildlife and Countryside Act 1981.
Wildlife and Countryside Act 1981.
Wild Mammals (Protection Act) 1996.
12
Table of Statutory Instruments
Conservation (Natural Habitats etc.) Regulations 1994, SI 1994/2716.

Countryside and Rights of Way Act 2000 (Commencement No. 1) Order 2001, SI
2001/114.
Environmental Information Regulations 1992, SI 1992/3240.
Ionising Radiation Regulations 1999, SI 1999/3232.
Nuclear Reactors (Environmental Impact Assessment for Decommissioning)
Regulations 1999, SI 1999/2892.
Radioactive Substances (Basic Safety Standards) (England and Wales)
Direction 2000.
Town and Country Planning (Assessment of Environmental Effects) Regulations
1988, SI 1988/1199.
Town and Country Planning (Environmental Impact Assessment) (England and
Wales) Regulations 1999, SI 1999/293.
13
Table of European Union Instruments
Treaties
Consolidated Version of the Treaty Establishing the European Community [1997]

OJ C340/173.
Single European Act 1987 [1987] OJ L169/1.
Treaty of Amsterdam Amending the Treaty on European Union, the Treaties
Establishing the European Communities and Certain Related Acts 1997
[1997] OJ C340/1.
Treaty on European Union 1992 [1992] OJ C191/1.
Treaty Establishing the European Atomic Energy Community 1957, 298 UNTS 3.
Directives
Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds

[1979] OP L103/1.
Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects
of certain public and private projects on the environment [1985] OJ L175/40.
Council Directive 90/313/EEC of 7 June 1980 on the freedom of access to
information on the environment [1990] OJ L158/56.
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural
habitats and of wild fauna and flora [1992] OJ L206/7.
Council Directive 96/29/Euratom of 13 May 1996, laying down basic safety
standards for the protection of the health of workers and the general public
against the dangers arising from ionising radiation [1996] OJ L159/1.
Resolutions
European Parliament resolution on the problem of nuclear safety fifteen years

after the Chernobyl accident, and its health consequences, Minutes of
03/05/2001 - Provisional Edition, B5-0321, 0322, 0323, 0324 and 0325/2001.
14
Table of International Instruments
Action Plan for the Human Environment (1972) 11 ILM: 1421.

Agenda 21 (1992) 31 ILM 874.
Convention for Biological Diversity (1992) 31 ILM 822.
Convention on the Conservation of European Wildlife and Natural Habitats 1979,
ETS/104.
Rio Declaration on Environment and Development (1992) 31 ILM 881.
Stockholm Declaration on the Human Environment (1972) 11 ILM 416.
Universal Declaration of Human Rights, 1948, UN Doc. A/810, at 71.
United Nations Economic Commission Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in
Environmental Matters 1998, ECE/CEP/43.
World Charter for Nature 1982 (1983) 23 ILM 455.
15
PART ONE :: UNDERSTANDING THE CONTRIBUTION OF
PUBLIC PARTICIPATION TO THE QUALITY OF
ENVIRONMENTAL DECISIONS
This thesis is divided into two parts. In this, the first Part, I lay the groundwork
for the empirical work that follows in the second Part. After an overview of the
thesis in the next chapter, I identify the nature of the environmental concerns that
form the subject of public environmental decision-making, and argue that
environmental decision-making is rightly anthropocentric, and in particular aims
to contribute to sustainable development. I show that sustainable development
is essentially concerned with the intra-generational and intergenerational equity
of access to natural resources, and public participation, particularly fair and
competent participation, in environmental decision-making has a potentially
valuable contribution to make to the achievement of intra-generational and
intergenerational equity in this regard.
16
Chapter 1: An Overview of the Thesis
We live in environmentally critical times, and the importance of improving the

substantive quality of our environmental decisions cannot be overestimated.
According to the World Wide Fund for Nature, there has been an overall decline
of about 37 percent in the abundance of forest, freshwater, and marine species;
this decline is a general indicator of the general decline in the state of the world’s
natural ecosystems. Since the 1980s, humanity has been running an ecological
deficit with the Earth; in 1999, per capita consumption of renewal natural
resources overshot the Earth’s biologically productive capacity by about 20
percent.1 Poverty and excessive consumption, the “twin evils of humankind”
continue to put pressure on our environment.2 The growing list of pressures
includes population growth, anthropogenic emissions of carbon dioxide,
freshwater shortages, the over-harvesting of renewable natural resources, and
biodiversity loss.3
In England and Wales, pressing environmental problems include climate change;

habitat loss; and rising quantities of wastes.4 Although steps are being taken to
address some of these environmental problems, they continue to loom large. If
present trends are allowed to continue, we can expect a rapid decline in the
environmental conditions necessary for continued human existence.
Public participation is now generally considered an essential component of

environmental decision-making. Yet, aside from some notable exceptions such
as in the area of planning law, environmental law generally does not provide for
mandatory public participation in environmental decision-making. Where public
consultation is a requirement, the details of such consultation are often left to the
discretion of the administrative decision-maker, subject only to the supervision of
a judiciary to ensure that decisions are not manifestly unreasonable in the
1
World Wide Fund for Nature, Living Planet Report 2002 (Gland, Switzerland: WWF, 2002), p. 4.
2
United Nations Environment Programme, Global Environmental Outlook 3: Past Present and
Future Perspectives (Nairobi: UNEP, 2002), p. xx.
3
Ibid., Ch. 2.
4
Environment Agency, Environment 2000 and Beyond (undated). As at 17 June 2002, online at
http://www.environment-agency.gov.uk/yourenv/129596/130001/?lang=_e&region=.
17
Wednesbury5 sense. Public participation in environmental decision-making is
also enhanced by the requirements of administrative law and human rights
legislation, but these requirements exist primarily to protect individual interests,
including property rights, rather than common interests. This sometimes works
against the protection of the environment. In any case, much of the public law
literature that advocate greater public participation in administrative decision-
making focuses on the contribution of public participation to the process values
of openness and accountability, and consequently the legitimacy of the decision,
rather than on its contribution to the quality of outcomes.6
The idea that public participation can contribute to better outcomes is not new,7
even within the legal literature.8 This thesis builds on this focus on the
contribution of public participation in environmental decision-making to better
substantive outcomes, particularly the achievement of sustainable development.
It adopts an interdisciplinary approach by drawing on developments taking place
outside law to understand the limitations of orthodox administrative decision-
making. It also critically evaluates, through case studies, the contribution to
sustainable development of the law and practice relating to public participation in
the authorisation of radioactive waste disposal. Similar assessments have been
carried on the quality of public participation in environmental decision-making.
Forester used the ideal speech situation to evaluate planning practice,9 while
Kemp used it to assess the legitimacy of the Windscale Inquiry,10 and
subsequently co-authored a study on the legitimacy of the Sizewell B Inquiry.11
5
Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1948] 1 KB 223.
6
See, for example, Prosser, T., “Towards a Critical Public Law” (1982) Journal of Law and
Society 9(1): 1.
7
For example, the competence of public participation in environmental decision-making has
been empirically explored in Coenen, F. H. J. M., Huitema, D., and O’Toole, L. J. O. Jr., (eds.),
Participation and the Quality of Environmental Decision Making (Dordrecht, The Netherlands:
Kluwer Academic Publishers, 1998).
8
See for example, Steele, J., “Participation and Deliberation in Environmental Law: Exploring a
Problem-solving Approach” (2001) Oxford Journal of Legal Studies 21(3): 415, 417.
9
Forester, J., “Critical Theory and Planning Practice”, in Forester, J., (ed.), Critical Theory and
Public Life (Cambridge, Massachusetts: MIT Press, 1985), p. 202.
10
Kemp, R., “Planning, Public Hearings, and the Politics of Discourse”, in Forester, J., (ed.),
Critical Theory and Public Life, ibid., p. 177.
11
O’Riordan, T., Kemp, R., and Purdue, M., Sizewell B: an Anatomy of the Inquiry (Basingstoke:
18
Wynne In the area of law, Palerm used Webler’s criteria for fairness and
competence to evaluate the provisions of the Aarhus Convention.12
The thesis firstly examines in Part One, the potential contribution of public
participation in environmental decision-making to sustainable development, then
goes on in Part 2 to critically evaluate in respect of the Environment Agency’s
authorisation of radioactive waste disposal, the extent to which the law and
Agency practice promote (or impede) participation.
After an overview of the thesis in Chapter 1, I begin my examination of the

nature of environmental decision-making with a consideration and rejection in
Chapter 2, of non-anthropocentric ethics and approaches to environmental
decision-making in the public sphere. In non-anthropocentric environmental
ethics, humans see nature through the ‘eyes’ of nature rather than through
human eyes. Through a non-anthropocentric lens, living organisms and even
whole ecosystems have intrinsic worth, i.e., they are valuable in their own right
independent of any value that humans care to place on them, indeed even
independent of the existence of humans. Just as some philosophers have
argued for non-anthropocentric conceptions of environmental ethics,13 others
have advocated non-anthropocentric legal approaches to environmental
protection, either by giving natural objects legal rights,14 or by conferring legal
protection on the environment irrespective of human benefit.15 It has also been
suggested that international law has already begun to shift to a non-
Macmillan Press, 1988).

12
Palerm, J. R., “Public Participation in Environmental Decision Making: Examining the Aarhus
Convention” (1999) Journal of Environmental Assessment Policy and Management 1(2): 229.
13
For an example of biocentrism, see Taylor, P., in Respect for Nature: a Theory of
Environmental Ethic (Princeton, New Jersey: Princeton University Press, 1986). For an example
of ecocentrism, see Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement. A
Summary” (1973) Inquiry 16: 95); and Devall, B., and Sessions, G., Deep Ecology: Living as if
Nature Mattered (Salt Lake City: Peregrine Smith Books, 1985).
14
Stone, C. D., Should Trees Have Legal Standing? Towards Legal Rights for Natural Objects
(1972: Palo Alto, California: Tioga Publishing Company, 1988).
15
Tribe, L. H., “Ways Not to Think about Plastic Trees: New Foundations for Environmental Law”
(1974) Yale Law Journal 83(7): 1315; and Wilkinson, D., “Using Environmental Ethics to Create
Ecological Law” in Holder, J., and McGillivray, D., (eds.), Locality and Identity: Environmental
Issues in Law and Society (Aldershot: Dartmouth Publishing Company, 1999), p. 17.
19
anthropocentric ethic in its approach to nature conservation.16 My examination
of international17 and English18 nature conservation law show that even in an
area of law where a non-anthropocentric ethic is most likely to take root,
environmental decision-making remains very much anthropocentric, albeit more
enlightened. Finally, I conclude that the case for shifting to a non-
anthropocentric environmental ethic or approach to environmental decision-
making is not compelling and may even be counterproductive.
I examine the anthropocentric environmental ethic in Chapter 3. Under an

anthropocentric worldview, the environment, the subject of environmental
decision-making, is worthy of consideration in decision-making because of its
value to us. Our very existence depends on nature providing life support
services such as air and water and continuing in a habitable state. The
environment also plays a vital role in the quality of our lives; it provides the raw
materials, energy and waste sinks, necessary for meeting our needs. Aside from
its instrumental value, the environment also has inherent value, i.e., its very
existence confers human benefit. For example, nature is the spontaneous force
that continues to intrigue, inspire and overwhelm humans and is a source of
spiritual, aesthetic and intellectual value.
Since the United Nations Conference on the Human Environment 1972,19 the
anthropocentric ethic of sustainable development has emerged as an
overarching framework for global and domestic environmental policy. Although
not the first to advocate it, the World Commission for Environment and
Development in their report, Our Common Future,20 pushed the concept into the
16
See D’Amato, A., and Chopra, S. K., “Whales: their Emerging Right to Life” (1991) American
Journal of International Law 85(1): 21; Emmenegger, S., and Tschentscher, A., “Taking Nature’s
Rights Seriously: the Long Way to Biocentrism in Environmental Law” (1994) The Georgetown
International Environmental Law Review 6: 545; and Gillespie, A., International Environmental
Law, Policy and Ethics (Oxford: Clarendon Press, 1997), pp. 127-36.
17
Such as the World Charter for Nature 1982 (1983) 23 ILM 455; and the Convention for
Biological Diversity 1992 (1992) 31 ILM 822.
18
Such as the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection Act) 1996.
19
Hereinafter “Stockholm Conference”.
20
World Commission on Environment and Development, Our Common Future (Oxford: Oxford
University Press, 1987).
20
fore. The report, from which the subsequent Rio Declaration on Environment
and Development 199221 draw heavily, linked failures of the environment with
failures in existing development strategies, arguing that environmental decisions
were inseparable from developmental questions since the common aim of both
was the improvement of human welfare. Environmental concerns and
developmental strategies therefore had to be integrated.
Intra-generational and intergenerational equity constitute the core of sustainable

development. As the World Commission on Environment and Development22
pointed out, the failures of the environment and development are rooted in the
disparity in economic and political power and called for greater intra-generational
and intergenerational equity so that the present and future needs of the human
species can be met. To achieve sustainable development, priority must be given
to meeting present basic needs. The pursuit of aspirations must come after the
meeting of basic needs, and take place within ecological limits so as not to
jeopardize the ability of future generations to meet their needs.
In Chapter 4, I consider how and why public participation in environmental

decision-decision-making contributes to the achievement of sustainable
development. Principle 10 of the Rio Declaration declares that “[e]nvironmental
decisions are best handled with the participation of all concerned citizens, at the
relevant level”, but at first blush, there does not seem to be any necessary
correlation between desired environmental outcomes and public participation.
Notably, Goodin has drawn attention to the distinction between theories of value
and theories of agency, and argued that there is no inherent reason why any
particular decision-making process should inherently be more likely than others
to lead to desired outcomes.23 In a similar vein, Saward argued that potential
conflict existed between substantive ecological values and democratic ones.24
Some writers have even argued that as individuals are most likely to act in their
21
Report of the United Nations Conference on Environment and Development, Annex I (1992)
31 ILM 881. Hereinafter “Rio Declaration”.
22
Hereinafter “WCED”.
23
Goodin, R. E., Green Political Theory (Cambridge: Polity Press, 1992).
24
Saward, M., “Green Democracy”, in Dobson, A., and Lucardie, P., (eds.), The Politics of
Nature: Explorations in Green Political Theory (London: Routledge, 1993), p. 63.
21
own interests, to the detriment of the common good, sound environmental
decisions can only come about by benign forms of authoritarian decision-making
prepared to coerce the public to act in the common interest.25
It is true that public participation in environmental decision-making, understood

as a vehicle for the pursuit of narrow individual or sectoral interests, may not
promote environmental outcomes, particularly when participants have unequal
bargaining power or influence. Goodin, et al, associate greater participation in
decision-making with greater responsiveness to the narrow self-interest of
participants, and therefore consider that greater public participation does not
necessarily promote environmental decision-making in the common interest. On
the other hand, political theory, supported by limited empirical evidence,
suggests that participants in open-ended discursive environmental decision-
making are more likely to internalise one another’s concerns and arrive at ethical
judgements in terms of the generalizable common good.26 These judgements
embody values that disclose what individuals, communities, and humanity
consider, or ought to consider, important. Values emerge from social interaction,
and public deliberation in environmental decision-making provides a forum for
such interaction.
Public discourse also aids the construction of reliable knowledge. Knowledge

can come from a number of sources. The most authoritative source of
knowledge is scientific knowledge, knowledge constructed from scientific
methods. Anecdotal or local knowledge, personal to individuals or groups, may
25
Heilbroner, R., An Inquiry into the Human Prospect (New York: Norton, 1974); and Hardin, G.,
“The Tragedy of the Commons” (1968) Science 162: 1243; and Ophuls, W., Ecology and the
Politics of Scarcity: Prologue to a Political Theory of the Steady State (San Francisco: Freeman,
1977).
26
See Sagoff, M., The Economy of the Earth: Philosophy, Law and the Environment (Cambridge:
Cambridge University Press, 1988); Dryzek, J., Discursive Democracy: Politics, Policy, and
Political Science, (Cambridge: Cambridge University Press, 1990); and Saward, M., supra. See
also, Barry, J., “Sustainability, Political Judgement and Citizenship: Connecting Green Politics
and Democracy”; Dobson, A., “Discursive Democracy and the Claims of Green Politics”; and
Eckersley, R., “Greening Liberal Democracy: the Rights Discourse Revisited”, in Doherty, B., and
de Geus, M., (eds.), Democracy and Green Political Thought: Sustainability, Rights and
Citizenship (London: Routledge, 1996), pp. 115 and 132, and 212 respectively.
22
be less authoritative but is no less valid as a source of knowledge. After all, who
knows better than women, youth and children their problems and needs that are
often different from those of men and adults respectively? Similarly, indigenous
peoples may apply local remedies to problems that scientists do not know about
or cannot understand. Different social groups see problems from a different
perspective and offer solutions that are unique to their perspective. The
contribution of different knowledge and different ways of knowing from a wide
diversity of sources and perspectives enables knowledge for environmental
decision-making to be more reliably grounded.
The theoretical framework established in Part One prepares the stage for a
critical evaluation, in Part Two, of public participation in the authorisation of
radioactive waste disposal. In Chapter 5, I set out the case studies in context
Chapter 5 by considering how the concept of sustainable development has been
understood and transposed into UK environmental policy. I note that the
government’s sustainable development strategy has been to emphasise
resource productivity as the engine for continued economic growth in order to
improve the quality of life for all, rather than deal with the awkward issues of
intra-generational and inter-generational inequity in access to natural resources.
This politically expedient strategy of achieving sustainable development through
national economic growth, coupled with a predisposition for a reductionistic and
risk-taking approach to innovation and technology, subordinate environmental
protection and improvement to economic growth and drive a systematic bias in
favour of the continual expansion and intensification of access to finite natural
resources, often in blatant disregard for intra-generational and intergenerational
equity.
I begin Chapter 6 with an introduction to the various case studies. All three case
studies relate to the regulation of radioactive waste disposal by the Environment
Agency of England and Wales,27 the key environmental protection agency for
both countries of the United Kingdom. The agency is an ideal subject for
empirical study because its statutory principal aim is the protection of the
environment so as to contribute to sustainable development.28 As such, the
27
Hereinafter “Environment Agency”.
28
Environment Act 1995, s. 4(1).
23
Agency more holistically perceives itself as the “champion for sustainable
development”29 rather than a mere environmental regulator. It has also
consulted the public extensively on how its provision for public participation in its
decision-making in selected areas can be improved, and is reviewing and
experimenting with new ways of involving the public in its decision-making.
The authorisation of radioactive waste disposal is also an apposite choice for

study. When radioactive wastes are discharged into the environmental media
beyond the assimilation capacity of these media, they begin to accumulate in the
environment, often over large areas, and for a very long time. This accumulation
of may disrupt the ecosystem and thereby adversely interfere with the
environment’s continued ability to render life support functions to us. Natural
resources, such as flora and fauna, that are contaminated with radioactivity also
pose a potentially serious threat to human health and consequently become
inaccessible for other needs.
It is true that the disposal of radioactive wastes can also be perceived as being
an environmental risk rather than as an environmental harm. Indeed, this is true
of many of the pressing environmental concerns today. Yet, to say that
something is an environmental risk is not a denial of the existence of harm, but
an acknowledgement that the harm posed is speculative and uncertain at the
present time.30 Where high stakes are involved, the risky nature of the activity
does not negate the need for preventive or precautionary measures.
The knowledge and values relevant to the authorisation of radioactive waste

disposal are highly contentious,31 making the inclusion of discursive public
participation all the more necessary lest decisions are based on distorted or
manipulated knowledge or value judgement. Indeed, other writers have
commented on the lack of rationality or legitimacy in nuclear-related decision-
29
Environment Agency, An Environmental Vision: The Environment Agency’s Contribution to
Sustainable Development, (Bristol: Environment Agency, undated), p. 18
30
Steele, J., supra, p. 425.
31
Renn, O., Webler, T., and Wiedemann, P., “The Pursuit of Fair and Competent Citizen
Participation”, in Renn, O., Webler, T., and Wiedemann, P., (eds.), supra, p. 339, at 356-7.
24
making.32 The application for authorisation of radioactive waste disposal and
ensuing decisions are as a matter of Agency practice subjected to its enhanced
public participation programme. As such, these applications have been highly
publicised and well documented, and provide readily accessible documentary
data for studying Agency practice in this regard. While this documentation is the
main source of information for the case studies, I have also supplemented it by
attending a public meeting organised by the Agency in relation to the Sellafield
Decision33 to personally observe the proceedings at such meetings.
A discussion of Webler’s model for fair and competent public participation in

environmental decision-making follows. The model is built on Habermas’
conception of the ideal speech situation.34 While Habermas’ ideal speech
situation concerns the quality of the actual public discourse, Webler has adopted
and modified the conditions for the ideal speech situation for use as evaluative
yardsticks for the rules relating to public participation. For Webler, the rules for
participation must provide for a fair opportunity for affected and interests persons
to participate, set the agenda and procedural rules, and select the
facilitator/moderator for the participation forum. The rules for participation must
also facilitate competent participation. Inter alia, this requires that facts be drawn
from a wide diversity of sources and perspectives, and disputes over facts be
resolved through rational argument rather than to deference to the authority of
the scientific establishment. Similarly, generalised value judgements in the
common interest can competently only emerge out of rational broad-based
debate amongst participants rather than deference to the authority of the political
elite.
32
See for example, Wynne, B., Rationality and Ritual: The Windscale Inquiry and Nuclear
Decisions in Britain (Bucks: The British Society for the History of Science, 1982); Kemp, R.,
“Planning, Public Hearings, and the Politics of Discourse”, supra; and O’Riordan, T., Kemp, R.,
and Purdue, M., supra.
33
Infra.
34
Webler, T., “‘Right’ Discourse in Citizen Participation: an Evaluative Yardstick”, in Renn, O.,
Webler, T., and Wiedemann, P., (eds.), Fairness and Competence in Citizen Participation:
Evaluating Models for Environmental Discourse (Dordrecht: The Netherlands: Kluwer Academic
Publishers, 1995), p. 35.
25
In Chapter 7, I begin the first of my two key chapters concerned with the case
studies proper by assessing the fairness of the law and Environment Agency
practice relating to public participation in the authorisation of radioactive waste
disposal. I should warn that these two chapters do not make for easy reading,
not least because of the sheer volume of material covered, and seek the
reader’s indulgence and patience in this regard. I had considered grouping my
assessments of fairness and competence according to the relevant headings of
law, and Agency practice, but eventually decided against it even though such an
approach would be more systematic from a dogmatic point of view. I have
instead, grouped the relevant law and practice according to the fairness and
competence criteria; the chapters read better when the relevant law and facts
are arranged around the issues instead of arranging the issues around the law
and facts.
I critically consider in Chapter 7, the fairness of relevant provisions of the

Radioactive Substances Act 199335 and the Human Rights Act 1998,36 and the
United Nations Economic Commission Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental
Matters 199837 as well as the fairness of the Environment Agency practice. I
conclude that decision-making in the authorisation of radioactive waste disposal
is dominated by the ideologies of orthodox public administration and private
interests, and the public participation ideology consequently plays a relatively
minor role.38 Statutory provision for public participation is limited to statutory
consultees deemed competent to advise the decision-maker on selected aspects
of the decision and those whose private rights or interests are directly affected;
the wider public are left out in the cold. While Agency practice is considerably
wider in terms of the scope of participants invited to participate, significant
deficits still exist in the law and practice in terms of facilitating fairer public
participation.
35
Hereinafter “1993 Act”.
36
37
ECE/CEP/43. Hereinafter “Aarhus Convention”.
38
McAuslan, P., Ideologies of Planning Law (Oxford: Pergamon Press, 1980).
26
I follow with a critical evaluation of the competence of the relevant law and
Environment Agency practice in Chapter 8. I conclude that competence in
environmental decision-making is low, exhibiting a high degree of deference to
the sheer authority of the scientific establishment, and value judgment of the
political elite. Although the courts play a supervisory role by ensuring that
evidentiary or value judgements are not manifestly unreasonable, they
essentially endorse the orthodox methods of fact-finding and value judgment by
the scientific and political establishments respectively; communicative reasoning
amongst participants is not valued as a competent means of resolving conflicts
in validity claims between participants.
I close in Chapter 9 with an overview of my findings, and conclude that prima

facie, the deficiencies in the fairness and competence of public participation in
the Environment Agency’s authorisation of radioactive waste disposal represents
a lost opportunity on the part of the Agency to strengthen its contribution to the
achievement of sustainable development. The Agency necessarily operates
within the institutional and legal framework in which it is established, and
therefore cannot entirely be responsible for this loss. I therefore end with some
thoughts on possible institutional and legal reforms in the law and Agency
practice that may improve fairness and competence in public participation in
environmental decision-making, and consequently make contribution to the
achievement of sustainable development more likely. Essentially, society needs
to be more reflexive and prepared to challenge the wisdom of existing methods
of environmental decision-making, particularly the conventional wisdom that
experts and the political leadership know better. One interim measure towards
this goal may be the setting up of an environmental court free of the emotional
baggage of a bygone era when environmental decisions were of lesser import
and did not have the potential to make or break the future of humanity.
27
Chapter 2: The Ethical Foundation of Environmental Decision-
making
In this chapter, I identify the nature of environmental concern. Three different

worldviews of the environment, namely anthropocentrism, biocentrism, and
ecocentrism, each with a different locus of value and a different set of associated
ethics, are considered. I then review selected international and national legal
instruments on nature conservation and conclude that the dominant worldview of
nature in public environmental decision-making remains anthropocentric, albeit
in its enlightened form. Environmental decision-making is still primarily
concerned with human survival and well-being rather than about the welfare of
non-human life or the planet’s ecosystems as such.
The Nature of Environmental Concern
How we perceive the environment matters because it affects how environmental

issues are presented and understood in environmental decision-making. An
anthropocentrist sees the environment simply as a store of natural resources
that to be drawn on to meet human needs. Under such a worldview, only
humans matter to humans; the environment is valued purely as a means to
serve human ends. Environmental harm is a matter for concern only because of
it affects the environment’s ability to meet our needs. Biocentrists and
ecocentrists criticise this view. They argue that nature must be respected and
protected regardless of its ability to serve human ends because nature has its
own intrinsic worth that is independent of its value to humans.
Anthropocentric Environmental Ethics
Early conceptions of nature were narrowly anthropocentric. Early philosophers

affirmed this instrumental view of nature. For Aristotle, for example, “plants exist
for the sake of animals … all other animals exist for the sake of man … nature
has made all things specifically for the sake of man”.1 Aquinas made a similar
1
Aristotle, Politics, 1.8.1256b13, The Politics of Aristotle, Simpson, P. L. P., (trans.), (Chapel Hill:
28
claim that “animals are ordered to man’s use in the natural course of things,
according to divine providence. Consequently, man uses them without any
injustice, either by killing them or employing them in any other way”.2
The anthropocentric value of nature can be broadly divided into three

categories.3 Firstly, nature is a source of raw materials, the ‘primary goods’ that
we consume directly. Examples of these raw materials include air and water,
and materials that we mine, extract, harvest or hunt. Secondly, nature performs
assimilation functions, absorbing the waste products from our activities. The air,
water, and land, for example, can act as waste sinks for certain wastes so that
the environment does not accumulate so much waste over time that the planet
becomes uninhabitable. Thirdly, nature also provides indirect services. The
maintenance of the gaseous composition of the atmosphere, and the regulation
of the earth’s temperature and the maintenance of weather patterns, for
example, ensure the maintenance of the stability and diversity of ecosystems.4
Nature also possesses amenity value – we enjoy aesthetic pleasure and
recreation from communion with a diversity of landscapes, flora and fauna, and
gain satisfaction of our intellectual curiosity. Our consumption of these indirect
services does not run down the stock of natural resources.
An anthropocentric worldview need not imply the inhumane treatment of animals

or disregard for animal welfare. Kant for example, argued that although we have
no direct moral duties to animals, kindness to animals was an indirect duty of
humanity. We practised kindness to animals; otherwise, we would also become
hard in our dealings with fellow humans.5 The more we learned about animal
behaviour, the more we loved them. Because animal nature was analogous to
human nature, we could not stifle our feelings in our treatment of animals. When
University of North Carolina Press, 1997), p. 22.

2
Aquinas, T., Summa Contra Gentiles, English Dominican fathers, (trans.), (London: Burns,
Oates & Washburn, 1924), Bk. 3, Pt. 2.
3
Reid, D., Sustainable Development: an Introductory Guide (London: Earthscan Publications,
1995), p. 90.
4
For example, the maintenance of the gaseous composition of the atmosphere, the regulation of
the earth’s temperature and the maintenance of weather patterns.
5
Kant, I., “Of Duties to Animals and Spirits” in Lectures on Ethics, Heath, P., and Schneewind, J.
B., (eds.), Heath, P., (trans.), (Cambridge: Cambridge University Press, 1997), p. 212.
29
other humans behaved cruelly to animals, it distressed us that they could be
capable of inflicting such cruelty and that the animal’s welfare was being
adversely affected. The dicta of Simon Brown LJ in R. v. Somerset County
Council, ex p. Fewings & ors. is also illuminating in this regard:
human well-being for many will depend upon their satisfaction as to animal welfare. That
explains much animal legislation and why such activities as bear-baiting and cock fighting
have long since been abolished. It explains why a spacious zoo provides enjoyment when
a cramped one may not, and why bull-fighting is unlikely to catch on here. The examples
6
can be multiplied.
Anthropocentric environmental concerns need not be confined to the needs of

the present generation of humans. Possibly the first philosopher to postulate
duties to posterity, Kant wrote
Human nature is such that it cannot be indifferent even to the most remote epoch which
may eventually affect our species, so long as this epoch can be expected with
7
certainty”.
From a rational viewpoint, neither temporal location, nor our ignorance, nor the
contingency of future people justifies our exclusion of future people from moral
consideration.8 The needs of people in the future merit as much moral
consideration as people in the present.
In an anthropocentric worldview, our main environmental concern centres

around the continued availability of natural resources to serve human ends,
including those of future generations of humans. Our concern about the
continued availability of natural resources for this and future generations is
6
[1995] 3 All ER 20, 30. Lord Justice Brown’s judgement was a dissenting one, but not in terms
of this anthropocentric conception of animal welfare.
7
Kant, I., “Idea for a Universal History with a Cosmopolitan Purpose”, Proposition 8, in Political
nd
Writings (2 edition), Reiss, H., (ed.), Nisbet, H. B., (trans.), (Cambridge: Cambridge University
Press, 1991), p. 50.
8
See, for example, Kavka, G., “The Futurity Problem” in Sikora R. I., and Barry, B., (eds.),
Obligations To Future Generations (Philadelphia: Temple University Press, 1978), p. 186. See
also, Golding, M., “Obligations to future generations” in Partridge, E., (ed.), Responsibilities to
Future Generations (New York: Prometheus Books, 1981), p. 61.
30
relatively recent, and may be traced to Malthus. For several centuries, the
dominant view, at least in the West, was to take for granted the abundance of
natural resources. Based on questionable empirical data and dubious theory,
Malthus was the first person to attempt to make a scientific contribution to the
debate about the possibility of conflict between population growth and
subsistence, and the first one to take a global perspective.
According to Malthus, while the human population increased geometrically, food

production increased arithmetically until the occupation of all fertile land, and
then increases at a diminishing rate. Eventually, the world population would
outstrip the availability of food.9 Malthus’ opponents countered that advances in
technology would effectively resolve the problem, and they were apparently right;
advances in science and technology did improve the productivity of land, and
Malthus’ predictions that population growth would outstrip food production did
not materialise. The reason for this however, had just as much to do with the
exploitation of the newly discovered continents and the development of the
means to transport produce around the world. These developments meant that
the inevitable was artificially prolonged as natural reserves from less or
uninhabited areas were drawn to sustain a growing population elsewhere.
Furthermore, with the discovery of less crowded continents, Britain and many
other European nations were able to ‘export’ their surplus population to far-flung
lands, thereby easing the pressures of a growing population.
In more recent times, Carson’s Silent Spring revived public concerns about
ecological limits in the twentieth century. Unlike Malthus who was concerned
about the sustainability of a geometrically growing world population, Carson
sounded the environmental alarm in a different quarter - the capacity of the
environment to assimilate the pollution arising from the indiscriminate and liberal
9
Malthus, T., An Essay on the Principle of Population; or a View of its Past and Present Effects
on Human Happiness; With an Inquiry into Our Prospects Respecting the Future Removal or
Mitigation of the Evils which it Occasions, selected and introduced by Donald Winch, D., using
the text of the 1803 edition as prepared by Patricia James for the Royal Economic Society, 1990,
showing the additions and corrections made in the 1806, 1807, 1817, and 1826 editions
(Cambridge: Cambridge University Press, 1992), Bk. 1, Ch. 1.
31
use of insecticide: the pollution destroyed the environment by saturating the air,
water, and earth with toxic chemicals and was poisoning all life on it.10
Commoner reinforced Carson’s concerns about modern technology. While

acknowledging that population and affluence were also contributory factors to
environmental problems, Commoner argued that these accounted only for a
small percentage of the increase in the depletion of natural resources. The
major culprit was in fact “the sweeping transformation of productive technology”
since the Second World War; “productive technologies with intense impacts on
the environment had displaced less destructive ones”.11 Carson had only been
concerned about the use of insecticide; Commoner showed that generally, other
technological advancements were also destroying the environment.
Ehrlich, on the other hand, identified a growing world population as the root
cause of famine and ecocatastrophe.12 According to him, all countries, rich and
poor, were overpopulated in the sense that they were not able to produce
enough food to feed their populations. Increasing food production could mitigate
the problem, but the technology adopted by humans in bringing this about and
the subsequent distribution of the food created more problems than it solved.
The only way to defuse the “population bomb” was to lower the birth rate, failing
which it would lead to a population explosion and an increase in the death rate.
Ehrlich subsequently acknowledged that environmental impact (I) was the
product of population (P), affluence (consumption) (A), and technology (T); and
coined the famous I=PAT equation, but insisted that the critical factor was
population:13 even though “burgeoning consumption among the rich and
increasing dependence on ecologically unsound technologies to supply that
consumption also play major parts” in the environmental crisis,14 any reduction in
consumption by the US was futile, as small per capita increases in consumption
10
Carson, R., Silent Spring (1962: Boston: Houghton Mifflin Company, 1987), p. 7.
11
Commoner, B., The Closing Circle: Confronting the Environmental Crisis (London: Jonathan
Cape, 1972), p. 177.
12
Ehrlich, P. R., The Population Bomb (1968: New York: Ballantine Book, 1971). See also
Ehrlich, P. R., and Ehrlich, A., The Population Explosion (1990: London: Arrow Books, 1991).
13
Ehrlich, P. R., and Ehrlich, A., ibid., p. 113.
14
Ibid., p. 18.
32
in populous countries, such as China and India, would easily offset such
reductions.15
Hardin was also of the view that the pollution problem was a consequence of
population, and was concerned about unrestrained population growth.16 While
exploitation or pollution by a small population did no serious harm, it became
unbearable only when the population became denser. He related the ‘parable’ of
the tragedy of the commons in which the pursuit of maximum individual benefit
by rational herdsmen would lead them to increase the number of cattle in their
herd grazing on the commons beyond the carrying capacity of the land,
eventually bringing ruin to all.17 Analogously, people in the developing countries
had every incentive to breed freely because they treated natural resources as a
commons, freely accessible to all. The solution, according to him, was to
legislate temperance in the freedom to breed through “mutual coercion mutually
agreed upon”.18
From the second half of the 1960s, the literature on the ‘environmental crisis’
began to develop a more structural view of the causes of natural resource
depletion and environmental degradation. One such view identified the crisis as
the consequence of a number of interrelated factors; reducing the environmental
impact was no longer seen as simply being a matter of slowing population
growth, reducing consumption, or greater scrutiny of technology alone - at the
root of the problem was society’s orientation towards insatiable growth. Boulding
observed that the prevailing conception of the economy was that of a “cowboy
economy”, an open system of production and consumption that exploited
abundant resources, used vast amounts of energy and accelerated production
with little thought of tomorrow. This was a mistaken perception because in
reality, the economy was operating in a “spaceman economy”, a closed system
with finite limits; the biosphere did not have unlimited natural resources, whether
for extraction or for use as sinks. Humans therefore had to find ways to maintain
15
Ibid., pp. 113-4.
16
Hardin, G., supra, p. 1245.
17
Ibid., p. 1244.
18
Ibid., p. 1247.
33
“stocks” instead of maximising the throughput of resources for production and
consumption.19
Putting the point across on a more scientific footing, Georgescu-Roegen argued

that the basic nature of the economic process was entropic and subject to the
law of thermodynamics.20 The process neither created nor consumed matter or
energy, but transferred low entropy into high entropy, e.g., by burning wood and
converting it to ash.21 The higher the entropy of a system, the more disordered
or random it became, and the less available its energy would be for use. While
the economic process sought to increase entropy, maximising the quantity of life
supportable required husbandry of a different nature - minimising the rate of net
increase of entropy. Any depletion of natural resources for the satisfaction of
non-vital needs that exceeded the rate of conversion of wastes into resources
reduced the number of lives that the future could support.22
Adopting a similar tone, the editors of The Ecologist argued in A Blueprint to

Survival23 that the principal defect of the industrial way of life with its ethos of
expansion, in particular in human numbers and per capita consumption, was that
it was not sustainable24 - finite resources simply could not sustain indefinite
growth in any form.25 Continuing adherence to deeply rooted beliefs in
continuous growth by the “homo sapiens industrialis”26 could only be at the cost
of “disrupting ecosystems and exhausting resources, which must lead to the
failure of food supplies and the collapse of society”.27 Aside from the technical
solutions such as minimising the disruption of ecological processes and
19
Boulding, K., “The Economics of the Coming Spaceship Earth” in Jarrett, H., (ed.),
Environmental Quality in a Growing Economy (Baltimore, Maryland: Johns Hopkins Press, 1966),
p. 3, at 9.
20
Georgescu-Roegen, N., The Entropy Law and the Economic Process (Cambridge,
Massachusetts: Harvard University Press, 1971), p. 283.
21
Ibid., p. 281.
22
Ibid., p. 21.
23
Ecologist, The, A Blueprint for Survival (Harmondsworth: Penguin, 1972).
24
Ibid., p. 15.
25
Ibid., p. 17.
26
Ibid., p. 21.
27
Ibid., p. 19.
34
population stabilisation, social changes were also urgently needed – one that led
to a society that was stable but not stagnant.28
Shortly thereafter, a research team from the Massachusetts Institute of

Technology published Limits to Growth.29 It reported the findings from its use of
a computer-based systems model, World 3, to study the implications of
continuing exponential growth in five interconnected trends of global concern –
industrialisation, population growth, widespread malnutrition, depletion of non-
renewable natural resources, and ecological damage from 1900 to 2100. The
report concluded, inter alia, that if the present growth trends continued
unchanged, “the limits to growth on this planet will be reached sometime within
the next one hundred years. The most probable result will be a rather sudden
and uncontrollable decline in both population and industrial capacity”.30 In order
to avoid the catastrophic consequences, these growth trends had to be arrested
as soon as possible, so that a sustainable ecological and economic stability
could be maintained. Limits to Growth attracted much attention for its seeming
objectivity.31 It received much criticism for its message of the inevitability of
collapse. Critics argued that the researchers had disregarded in their model,
non-physical factors such as man’s ingenuity in solving problems.32
In the past decade, Our Common Future, the report of the WCED on sustainable
development, has probably remained the most influential anthropocentric
expression of concern for state of the environment.33 The Commission noted the
environmental trends that threatened to radically alter the planet, and the threat
this posed to all life on Earth, including humans. The WCED acknowledged that
28
Ibid., p. 29.
29
Meadows, D. H., et al, The Limits to Growth (London: Earth Island, 1972).
30
Ibid., p. 23.
31
For a critique of the ideological background of, and models used in The Limits to Growth, see
Cole, H. S., D., et al, (eds.), Thinking About the Future: a Critique of The Limits to Growth
(London: Chatto & Windus for Sussex University Press, 1972).
32
See for example, Simon, J., The Ultimate Resource (Princeton: Princeton University Press,
1981).
33
Our Common Future is also one of the key documents that led to the entrenchment of the
concept of sustainable development in international and national environmental law and policy. I
discuss the report in greater detail in Chapter 3.
35
the accumulation of knowledge and the development of technology could stretch
ecological limits, but pointed out that there were ultimate limits to the carrying
capacity of the resource base.34 Its concern was that many present efforts to
meet present needs and aspirations were simply unsustainable because we
were drawing too heavily and too quickly on already overdrawn environmental
resources.35
The anthropocentric concern about the state of the environment continues to

dominate. Several established environmental trends, in particular, population
growth, rising temperature, falling water tables, shrinking cropland per person,
collapsing fisheries, shrinking forests, and the loss of plant and animal species
are a cause for concern because they seem to be threatening the future of
civilisation.36 Global technology appears to enable problems of limitation to be
overcome, but has only succeeded in transferring local environmental limits to
the global level.37
Even if the warnings by ‘doomsayers’ of impending ecological disaster are

overcautious, their core message cannot be undisputed - the Earth has finite
natural resources and therefore cannot be used to meet every human ‘need’.
What continues to be disputed is whether the present trend of resource use can
continue. Resource optimists such as Bailey, continuing in the tradition of the
late Simon,38 continue to argue that human ingenuity is the key to sustainable
use of natural resources:
34
Ibid., p. 45.
35
Ibid., p. 8
36
Brown, L. R., “Challenges of the New Century”, in Starke, L., (ed.), State of the World 2000: a
Worldwatch Institute Report on Progress toward a Sustainable Society (London: Earthscan,
2000), p. 3, at 5. See also World Wide Fund for Nature, supra; and United Nations Environment
Programme, supra.
37
Brown, L. R., and Flavin, C., “A New Economy for a New Century”, in Starke, L., (ed.), State of
the World 1999: a Worldwatch Institute Report on Progress Toward a Sustainable Society
(London: Earthscan Publications, 1999), p. 3, at 4.
38
See Simon, J., supra. Simon is generally regarded as one of the first to reject the argument
that supplies of natural resources are finite. Simon’s flawed central argument is that natural
resources are not resources until human intellect makes them so, and since human intellect is an
infinitely renewable resource, the supply of natural resources is accordingly infinite.
36
We make ourselves better off not by increasing the amount of stuff on planet earth – that
is, of course, fixed – but by rearranging the stuff we have available so that it provides us
with more of what we want – food, clothing, shelter, and entertainment. As we become
cleverer about rearranging material, the more goods and services we can get from
relatively less stuff. This process of improvement has been going on ever since the first
members of our species walked the earth ... If our technologies had remained stuck in the
past and if somehow the world’s population had nevertheless been able to grow to its
current level, the impact of humanity on the natural environment would have been
calamitous … humanity has avoided the Malthusian trap while, at the same time, making
the world safer, more comfortable, and more pleasant for both larger numbers of the
39
people as well as a larger proportion of the world’s people.
Bailey is of course correct to point out that human technology is potentially

unlimited. For that matter, renewable natural resources are potentially unlimited
as well. Even if the theoretical conceivability of infinite growth in resource
consumption were conceded, it does not follow that such growth is even
probable or even possible in practice.40 There is moreover, a limit to the rate at
which human ideas or renewable natural resources can be generated, even in
the most favourable of conditions. The problem lies in our inability to generate
ideas fast enough to keep up with the rate at which we consume natural
resources.
As the WCED noted, “new technologies are not all intrinsically benign, nor will
they have only positive impacts on the environment”.41 Carson and Commoner
showed that new technology may bring with it its own set of problems and
hazards. Pesticides may protect crops from insects in the short term, but the
poison creates new problems for us when it enters our food chain. Furthermore,
the insects gradually develop a resistance to the pesticides, so increasing
quantities and dosage have to be applied, and new varieties of pesticide have to
be introduced to keep the insects at bay.
39
Bailey, R., “The Progress Explosion: Permanently Escaping the Malthusian Trap”, in Bailey, R.,
(ed.), Revisiting the True State of the Planet: Earth Report 2000 (New York: McGraw-Hill, 2000),
p. 1, at 13.
40
Lecomber, R., Economic Growth versus the Environment (London: Macmillan, 1975), p. 42.
41
World Commission on Environment and Development, supra, p. 219.
37
Furthermore, much of our technology has really succeeded in displacing and
redistributing the adverse effects of the environmental crises rather than
resolving them. Often, the problem is not so much an absolute unavailability of
resources for meeting needs as inaccessibility by some people to such
resources. This gives rise to the question of how access to these finite
resources can be better shared. Advances in technology may improve the
productivity of natural resources, but may not necessarily alleviate the problem
of inaccessibility. In fact, the distributional problem can be aggravated to the
extent that wealth, and consequently access to natural resources, is increasingly
concentrated into a privileged minority - those with the political and economic
means to control the direction of scientific and technological developments.
Human ingenuity or not, we have at present is a finite stock of natural resources

to meet our needs. Many natural resources, e.g., fossil fuels, are non-renewable
- or at least we have not found a way to regenerate them in a short time. Even
renewable resources, e.g., fish stock, can only regenerate at a slow, steady rate,
at nature’s own pace, occasionally enhanced by human ingenuity. As the world
population grows and per capita consumption of natural resources increases,
albeit at a more efficient rate, our rate of running down natural resources to an
unusable state increasingly exceeds the earth’s capacity to restore them. The
decline in levels of some of these natural resources that are essential for basic
survival, such as clean air, potable water, and food, is evidence that our
technology is not restoring our natural resources faster than we are depleting
them.
Finally, even if technological advancements have enabled us to “rearrange stuff”

so that we have so far been able to overcome problems of survival, it is
irresponsible assume to that we can continue to do so, and to leave future
generations to bear the risk that we may eventually not be able to cope with our
increasing rate of depletion of natural resources. Prudence dictates that we err
on the side of caution and take precautionary measures today.42 If we adopt
precautionary measures now and it turns out that we were overcautious, the
consequences may be that the present and future generations would have
42
Pearce, D., Markandya, A., and Barbier, E., Blueprint for a Green Economy (London:
Earthscan Publications, 1989), pp. 10-1.
38
foregone the opportunity to live a higher quality of life than if such precautions
had not been taken. On the other hand, if our confidence in technological
solutions to future problems turns out to be misplaced, our premature irreversible
depletion of natural resources on the basis of anticipated technological
improvements would be disastrous for future generations who would have to pay
dearly for our misjudgement.
Valuing Nature for its Own Sake
An anthropocentrist’s primary environmental concern would be about the

continued availability of natural resources for human use. As pointed out earlier,
an anthropocentric ethic does not necessarily exclude “moral considerability”43 of
non-human life. There is an alternative view however, that we owe direct moral
duties to nature to treat it with respect because nature has intrinsic worth that
merits our respect regardless of any benefit or otherwise that we derive from it.
The idea of humans owing moral obligations to non-humans departs from
traditional theories of moral philosophy. These theories generally take a
reciprocal view of morality. Humans are potentially capable of freedom and
reason, and of thinking self-critically about their own life and to take personal
responsibility for them. They respect the same quality in other humans, and
therefore reason and act morally by treating other humans in terms of principles
that are reasonably acceptable to these people.44 The non-anthropocentric
worldview on the other hand, rejects an anthropocentric approach to
environmental decision-making. Tribe, for example, has pointed out that
What the environmentalist may not perceive is that, by couching his claim in terms of
human self-interest – by articulating environmental goals wholly in terms of human needs
and preferences – he may be helping to legitimate a system of discourse which so
structures human thought and feeling as to erode, over the long run, the very sense of
45
obligation which provided the initial impetus for his own protective efforts.
43
Goodpaster, K. in “On Being Morally Considerable” (1978) Journal of Philosophy 75: 308.
44
See, for example Kant, I., Foundations of the Metaphysics of Morals, Beck, L. W., (trans.),
(New York: Liberal Arts Press, 1959).
45
Tribe, L. H., supra, p. 1331.
39
Within the non-anthropocentric worldview, there are two broad positions: those
who locate value in individual non-human life, and those who locate value in the
biotic community as a whole.
Biocentrism
Biocentrists46 have an individualistic outlook of nature. Taylor, for example,

argued that all organisms had a good of their own; we could objectively say, from
the organism’s viewpoint whether a certain state of affairs was good or bad for
the organism without reference to any other entity.47 This was so even for the
simplest of organisms:
Even when we consider such simple animal organisms as one-celled protozoa, it makes
perfectly good sense to a biologically informed person to speak of what benefits or harms
them, what environmental changes are to their advantage or disadvantage, and what
48
physical circumstances are favourable or unfavourable to them.
Taylor accepted that the fact that an individual organism had an objective good
was a necessary but insufficient condition for a biocentric ethic; the other
prerequisite is a biocentric worldview. The core beliefs of this worldview were
firstly, that we were members of the Earth’s community of life in the same sense
and on the same terms in which other living things were members of that
community; secondly, the human species, like all other species, was an integral
46
By “biocentrists”, I exclude philosophers who do not go ‘all the way’. Singer, for example,
nd
argues for a moral duty towards only sentient animals. See Singer, P., Animal Liberation (2
edition) (New York: New York of Review Books, 1990). Regan, on the other hand, argued for
moral consideration for higher forms of animals that have beliefs and desires, an emotional life,
and a psychophysical identity over time. See Regan, T., The Case for Animal Rights (Berkeley:
University of California Press, 1983). I agree, however, with Taylor that there is no basis for
according preferential treatment for certain species of organism based on the degree to which
they share selected human characteristics. See Taylor, P., supra, pp. 129-33. Alder and
Wilkinson described approaches that relied on selected human characteristics as benchmarks of
value as “anthropomorphic”, and considered them flawed because they accord respect to living
things as “honorary human beings”. See Alder, J., and Wilkinson, D., Environmental Law and
Ethics (Basingstoke: McMillan, 1999), pp. 50 and 348.
47
Taylor, P., ibid., pp. 60-71.
48
Ibid., pp. 66-7.
40
element in a system of interdependence; thirdly, each organism was a unique
individual pursuing its own good in its own way; and lastly, we were not
inherently superior to other living things. Thus, when human interests conflicted
with the interests of another organism, human interests did not automatically
prevail; respect for nature entailed balancing the good of humans with the
conflicting good of animals and plants.
The biocentric ethic is not without its difficulties. Notwithstanding Taylor’s

advocacy for the intrinsic worth of individual organisms, he concedes that our
non-basic interests may, in certain circumstances, justifiably prevail over non-
human basic interests if we determine that “the human values being furthered
are really worth the extreme costs being imposed on wild creatures”,49 and that a
modification in values or a shift in perspective cannot be made.50 Yet, if we are
not inherently superior to other living things, there could not hardly ever be any
justification for us to decide that certain benefits to us merit the imposition of
extreme costs on other living things. Taylor also argued that as a last resort,
when we unavoidably harm animals and plants, we had to must make reparation
or compensation by focussing “on the soundness and health of whole
ecosystems and their biotic communities” as this is the “most effective means for
furthering the good of the greatest number of organisms”.51 Again, this seems
inconsistent with the idea of respecting a non-human in its own right. If
individual organisms have intrinsic worth, I cannot see how making other
organisms better off can ever constitute reparation or compensation for harm
caused to an individual organism, even as a last resort.
Ecocentrism
Ecocentrists52 view nature more holistically than biocentrists. They place

paramount importance in ecosystems as communities of interrelated organisms,
49
Ibid., p. 290.
50
Ibid., p. 291.
51
Ibid., p. 305.
52
See Leopold, A. C, “The Land Ethic” in A Sand County Almanac (New York: Ballantine, 1970);
and Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement: a Summary”,
supra.
41
rather than in the individual organisms themselves. Leopold is the single most
influential figure in the development of an ecocentric environmental philosophy;
he was the first person to call for a radical rethinking of ethics in light of the then
newly developed science of ecology. His essay, The Land Ethic,53 was the first
systematic presentation of an ecocentric worldview.54 In the essay, Leopold
described the land as a biotic mechanism:
Plants absorb energy from the sun. This energy flows through a circuit called the biota,
which may be represented by a pyramid consisting of layers. The bottom layer is the soil.
A plant layer rests on the soil, an insect layer on the plants, a bird and rodent layer on the
insects, and so on up through various animal groups to the apex layer, which consists of
the larger carnivores.
The species of a layer are alike … in what they eat. Each successive layer depends on
those below it for food and often for other services, and each in turn furnishes food and
services to those above ... Man shares an intermediate layer with the bears, racoons, and
squirrels which eat both meat and vegetables.
The lines of dependency for food and other services are called food chains … Each
species … is a link in many chains … The pyramid is a tangle of chains so complex as to
seem disorderly, yet the stability of the system proves it to be a highly organised structure
…
In the beginning, the pyramid of life was low and squat; the food chains short and simple.
Evolution has added layer after layer, link after link. … The trend of evolution is to
55
elaborate and diversify the biota.
Leopold argued for an extension of ethics to deal with man’s relations with the
land. This involved enlarging the boundary of the human community to include
the land, so that humans saw themselves as only ordinary members and citizens
of the land-community rather than as its conquerors.56 He eschewed a system
of conservation based solely on economic self-interest that led to the elimination
of many elements in the land-community that are in fact essential to its healthy
functioning. Leopold did not see any conflict between the broader human
53
Leopold, A. C., supra.
54
Ibid., p. 263.
55
Ibid., p. 251.
56
Ibid,. p. 240.
42
interest and the interest of the land-community; it was very much in the interests
of humans to keep healthy, the land of which humans were a part. There was
nothing wrong with using parts of nature for human benefit so long as the health
of the community as a whole was respected. It was important that humans
stopped thinking of land use solely in economic terms; they also had to address
ethical and aesthetic questions. He summed up his ethic thus: “A thing is right
when it tends to preserve the integrity, stability, and beauty of the biotic
community. It is wrong when it tends otherwise”.57
Leopold’s land ethic marked the start of an ecocentric ethic, but it is not as
“thoroughly non-anthropocentric” as some people might think.58 What Leopold
appeared to be suggesting was that it is in our interest to conceive of nature
holistically and to see ourselves as a part of this nature. His call to question
what is “ethically and esthetically right, as well as what is economically
expedient”; and to preserve the “integrity, beauty and stability” of the biotic
community may be understood as an appeal to us to appreciate the inherent
value of the ecosystem to their own well-being rather than to treat the biotic
community as the locus of value. While he supported the hunting of animals to
keep their population under control, he did not seem to countenance the
application of forcible culling to keep the human population in check. In that
sense the land ethic is a form of enlightened anthropocentrism59 – in the long
term, what is good for the biotic community is also good for us. Callicott spoke
of the ambivalence of Leopold’s land ethic thus,
From the inside, from the lived point of view of the community member with evolved moral
sensibilities, it is deontological. It involves an affective-cognitive posture of genuine love,
respect, admiration, obligation, self-sacrifice, conscience, duty, and the ascription of
intrinsic value and biotic rights. From the outside, from the objective and analytical
57
Ibid., p. 262.
58
See for example, Des Jardins, J., R., Environmental Ethics: an Introduction to Environmental
nd
Philosophy (2 edition) (London: Macmillan Press, 1997), p. 178.
59
Further evidence of his enlightened anthropocentric approach to a holistic view of the
environment can be found throughout A Sand County Almanac where he described the
contribution of nature to human culture and well-being. See also Leopold’s early explicitly
anthropocentric views subsequently published in Leopold, A. C., “Some Fundamentals of
Conservation in the Southwest” (1979) Environmental Ethics 1: 131.
43
60
scientific point of view, it is prudential.
Deep Ecology
The term “thoroughly non-anthropocentric” is more apt for a more radical form of
non-anthropocentric environmental ethic such as deep ecology. In some ways,
Lovelock’s hypothesis can be seen as the precursor of deep ecology - the
scientist hypothesised that the Earth is an intelligent system in which all
organisms play a part in maintaining. These organisms in turn derived life
support from the system.61 Like Leopold, deep ecologists take a holistic view of
nature. According to deep ecologists, organisms, including humans, are “knots
in the biospherical net or field of intrinsic relations”.62 Deep ecologists reject
however, the anthropocentric view of “shallow” ecologists who believe that
“humans are above or outside of nature, as the source of all value, and
ascribe[s] only instrumental, or use value to nature”.63 According to deep
ecologists, shallow ecologists are primarily concerned with the “health and
affluence of people in the developed countries”.64 Instead, to deep ecologists,
the universe consists of one basic spiritual or material entity, and humans, along
with different organisms or parts of nature are merely intimate parts of this of this
single entity.
The non-anthropocentric nature of the deep ecology worldview is evident from its
basic principles.65 Deep ecologists believe that the well-being and flourishing of
60
Callicott, J. B., “The Conceptual Foundations of the Land Ethic” in Companion to a Sand
County Almanac: Interpretive and Critical Essays (Madison, Wisconsin: University of Wisconsin
Press, 1987), p. 214. See also Heffernan, J. D., “The Land Ethic: a Critical Appraisal” (1982)
Environmental Ethics 4: 235, where Heffernan suggests that the land ethic was intended as a
subsidiary supplement rather than a substitute for an anthropocentric standard of right and
wrong.
61
See Lovelock, J. E., GAIA: a New Look at Life on Earth (Oxford: Oxford University Press,
1979).
62
Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement. A Summary”, supra.
63 st
Capra, F., “Deep Ecology: a New Paradigm” in Sessions, G., (ed.), Deep Ecology for the 21
Century: Readings on the Philosophy and Practice of the New Environmentalism (Boston:
Shambhala Publications, 1995), p. 19, at 20.
64
Naess, A., “The Shallow and the Deep, Long-Range Ecology Movement. A Summary”, supra.
65
The principles were developed as a statement of common principles to unify the diversity of
44
non-human life on Earth as a whole have value in themselves;66 and this
requires a smaller human population. So it would be better for humans and even
better for non-humans if the human population were to be reduced.67 Ultimately,
what matters is that the ecosystems should flourish - the value of individual life,
human or otherwise, depends on its contribution to the flourishing of these
ecosystems. If we upset the ecological balance through our destructive
behaviour or through our sheer numbers, then it is better for the ecosystem that
there are fewer of us. Intrinsic worth also resides in the richness and diversity of
life forms, and humans have no right to reduce this richness and diversity except
to satisfy their vital needs. In the event of conflict between our interests and
non-human interests, deep ecologists have a straightforward answer: “The earth
does not belong to humans … humans only inhabit the earth, using resources to
satisfy vital needs”.68 Thus, our non-vital needs would necessarily have to defer
to the good of the ecosystem.69
The difference between Leopold’s anthropocentric land ethic and deep ecology’s
non-anthropocentric ethic shows most clearly in the way each approaches the
concept of biological diversity. While both the land ethic and deep ecologists
emphasise the importance and value of biodiversity, each takes a very different
view of what biodiversity entails. For Leopold, biodiversity calls for an active
management of the structure of the biotic pyramid to mould ecosystems in
accordance with a human-conceived ideal state of the ecosystem. In cases
aims and formulations of various deep ecologists, and were first published in Sessions, G., (ed.),
Ecophilosophy VI newsletter (May, 1984). They have subsequently appeared in a number of
publications, including Naess, A., “The Deep Ecological Movement: Some Philosophical Aspects”
st
in Sessions, G., (ed.), Deep Ecology for the 21 Century: Readings on the Philosophy and
Practice of the New Environmentalism, supra, p. 64, at 68.
66
For an exposition of the objective value of nature, see Rolston, H., III, Environmental Ethics:
Duties to and Values in the Natural World (Philadelphia: Temple University Press, 1988).
67
Naess, A., “The Deep Ecology ‘Eight Points’ Revisited” in Sessions, G., (ed.), Deep Ecology
st
for the 21 Century: Readings on the Philosophy and Practice of the New Environmentalism,
supra, p. 213, at 218.
68
According to Naess, what are vital needs is “deliberately left vague to allow for considerable
latitude in judgement”. See Naess, A., “The Deep Ecological Movement: Some Philosophical
Aspects”, supra, p. 69.
69
Ibid., p. 74. Contra Taylor’s biocentrism, which allows in some circumstances for non-basic
human interests to override basic non-human interests.
45
where we consider a species to be over-reproducing and therefore threatening
the integrity and stability of structure, we could have an obligation to cull the
species.70 Deep ecologists on the other hand, argue that humans should not
interfere with the course of nature to conform to a human-generated conception
of an ideal state; there is no inherently correct structure for nature. We cannot
improve biological diversity because one natural state of diversity is as good as
any other. The best thing we can do for nature is to leave it alone to flourish on
its own and to minimise our impact on it.71
Social ecologist, Bookchin, has highlighted a number of internal contradictions in

the deep ecology worldview. Essentially, he argued that although deep
ecologists agreed that the emergence of human beings and human society
guided by sophisticated thought rather than instinct are products of natural
evolution, yet, they treated human activities separately from the activities of other
species; humans were expected to tread lightly on this planet as though they
were only visitors instead of rightful inhabitants along with the other co-
inhabitants. Although deep ecologists did not consider that there was any ideal
state of nature, they argued against any human intervention in the state of nature
as though there were something inherently unnatural in human intervention.
Furthermore, while deep ecologists did not support the culling of species
because they did not accept that there was any ideal state of nature, they argued
that the planet would be better off with a smaller human population. It was
understandable for proponents of anthropocentrism to apply double standards
for humans and nature; in their worldview, humans were separate from nature.
In the case of deep ecology however, the application of double standards was
inexplicable; their treatment of humans separately from the rest of nature
seemed inconsistent with their worldview that humans and the rest of nature
were one.72
70
Presumably, Leopold does not intend to go so far as to support the culling of humans to
maintain the “integrity, stability and beauty of the biotic community” from a human perspective,
thus suggesting that ultimately his land ethic is anthropocentric.
71
Devall, B., and Sessions, G., supra, p. 68.
72
Bookchin, M., “Social Ecology versus Deep Ecology” (1988) Socialist Review 18(2): 11.
46
Non-anthropocentric Approaches to Environmental Decision-
making
Notwithstanding the conceptual difficulties of a non-anthropocentric

environmental ethic, it might be argued that a non-anthropocentric approach to
environmental protection may further anthropocentric environmental objectives.
Stone, for example, argued for natural objects to have legal rights.73 A society in
which rivers had legal rights would evolve a different system from one that did
not employ such an expression. Judges would be inclined to interpret rules such
as those of burden of proof more liberally. Thus, a non-anthropocentric
approach could “contribute to a change in popular consciousness”74 and give
conservationists the means to argue in “less egotistic and more emphatic”
terms.75
Stone76 and Tribe77 likened giving natural objects legal rights to giving
corporations legal rights.78 Corporations are legal constructs. They ‘exist’ only
in the realm of imagination. When the law protects corporations by giving them
rights, it is not because corporations have some intrinsic worth that humans
respect. It is simply an effective way of protecting a human benefit, in this case,
a commercial venture. In the same way, “affording legal rights to endangered
species and threatened wilderness areas might thus be regarded as a
convenient technique for concentrating congeries of otherwise diffuse aesthetic
and ecological concerns ultimately reducible to human interest – in other words,
as a useful but quite transparent legal fiction”.79
As a technique for furthering anthropocentric environmental concern, a non-

anthropocentric approach to environmental decision-making is unnecessary and
73
See Stone, C. D., supra.
74
Ibid., p. 53.
75
Ibid., p. 43.
76
Ibid., pp. 40-2.
77
Tribe, L. H., supra. See also Wilkinson, D., “Using Environmental Ethics to Create Ecological
Law”, supra, pp. 41-2.
78
Stone, C. D., supra, p. 5; and Tribe, L. H., ibid., pp. 1342-3.
79
Tribe, L. H., ibid., p. 1343.
47
may even be counter-productive. As Passmore rightly pointed out, the objective
of environmental protection would be well served if we learned to appreciate
nature for what it is rather than what it can do. He argued that we have to “learn
to be more sensuous towards the world, ready to enjoy the present moment for
itself, as an object of immediate pleasure, instead of frenetically seeking the
power and security that possessions offer … Only if men can first learn to look
sensuously at the world will they learn to care for it”.80
Norton also considered a non-anthropocentric approach redundant; an

anthropocentric concern for future generations of human beings would also
require the maintenance of biodiversity and the health of the ecosystem:
Introducing the idea that other species have intrinsic value, that humans should be “fair” to
all other species, provides no operationally recognisable constraints on human behaviour
that are not already implicit in the generalised, cross-temporal obligations to protect a
healthy, complex, and autonomously functioning system for the benefit of future
81
generations of human beings.
A non-anthropocentric approach to environmental decision-making would further

have to overcome an ideological barrier. In the context of legal environmental
law for example, Tribe himself accepted that “the widely held view that law exists
for the purpose of ordering human societies, and for that purpose alone, may
well prove unassailable”.82 Similarly, Stone agreed that society would consider
the conferral of rights to natural objects “unthinkable”, at least initially. He
considered however, that “we are already on the verge of assigning some such
rights, although we have not faced up to what we are doing in those particular
terms”.83
A non-anthropocentric approach to environmental decision-making may be

counterproductive because, as Dobson pointed out, an anthropocentric
80
Passmore, J., Man’s Responsibility for Nature (London: Gerald Duckworth & Co., 1974), pp.
188-9.
81
Norton, B. G., Towards Unity among Environmentalists (Oxford: Oxford University Press,
1991).
82
Tribe, L. H., supra, p. 1329.
83
Stone, C. D., supra, pp. 8-10.
48
approach to environmental approach to environmental protection was more likely
to have mass appeal. Biocentrists and deep ecologists view humans as only
one of the many life forms on Earth. As such, humans are not entitled to any
special entitlement to pursue their activities or survival at the expense of other
life forms. The potential anti-human image projected by non-anthropocentrism
militates against its having mass appeal. On the other hand, even non-
environmentalists might be prepared to subscribe to anthropocentric
environmental ends through their committed concern for the welfare of the
present and future generations of humans.84
Ultimately, it is difficult to see how a non-anthropocentric ethic or approach could

be adopted or be helpful in environmental decision-making. As we have seen,
non-anthropocentrists do not prescribe absolute protection for the good of non-
human life.85 When human and non-human interest conflict, it is not clear how
the conflicting interests are to be resolved without resort to what humans hold
dear.
Anthropocentric Environmental Law and Decision-making
Some academics have argued that international law recognises a non-

anthropocentric ethic in environmental protection. In this section, I examine the
nature of the underlying environmental ethic of international and English
environmental law86 and conclude that both remain anthropocentric. I will be
surveying nature conservation laws in England because these seemingly protect
non-human interests – the care and survival of plants, wildlife and areas of
special ecological merit.
84
Dobson, A., Justice and the Environment: Conceptions of Environmental Sustainability and
Dimensions of Social Justice (Oxford: Oxford University Press, 1998), p. 257.
85
Taylor, P., supra, pp. 290-1; and Naess, A., “The Deep Ecological Movement: Some
Philosophical Aspects”, supra, p. 74.
86
I leave out the question of whether the common law is anthropocentric. I share the views of
Alder and Wilkinson that the common law is anthropocentric. See Alder, J., and Wilkinson, D.,
supra, pp. 222-4.
49
It is not always easy to distinguish between laws that protect the human value of
nature and laws that protect the intrinsic worth of nature. Wilkinson suggested
some distinctions.87 Non-anthropocentric legislation would provide for the
respect of nature as a priority and would permit its exploitation only in
exceptional circumstances, such as to meet vital human needs. Such legislation
would not seek to protect not only the endangered species but would also
contain measures to prevent endangering common species and habitats in the
first place. Finally, the “special value on wild nature” would be respected and
large and abundant areas would be set aside where the management of nature
is de-emphasised and nature is allowed to take its course.
Assuming that the underlying environmental ethic of environmental law share the
same underlying environmental ethic for administrative environmental decision-
making, I tentatively conclude that administrative environmental decision-making
is similarly anthropocentric. This conclusion is subsequently confirmed in
Chapter 5 where I examine the extent to which sustainable development has
become the cornerstone of UK environmental decision-making today.
International Law on Nature Conservation
Gillespie,88 and Emmenegger and Tschentscher89 argued that there has been a
gradual shift in the ethical basis within international environmental law and policy
from anthropocentrism towards non-anthropocentrism. These writers are not the
first to make these claims,90 but they have gone the furthest in arguing
87
Wilkinson, D., supra, pp. 31-3.
88
Gillespie, A., International Environmental Law, Policy and Ethics (Oxford: Clarendon Press,
1997), Ch. 7.
89
Emmenegger, S., and Tschentscher, A., supra.
90
See for example, Birnie, P. W., and Boyle, A. E., International Law and the Environment
(Oxford: Clarendon Press, 1992), pp. 211-3; Boyle, A. E., “The Role of International Human
Rights Law in the Protection of the Environment”, and Redgwell, C., “Life, the Universe and
Everything: a Critique of Anthropocentric Rights”, in Boyle, A. E., and Anderson, M. R., Human
Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), pp. 43 and 71
respectively; and D’Amato, A., and Chopra, S. K., supra. The views of these writers are more
tentative: Birnie and Boyle took the view (at p. 213) that there is some evidence of an incipient
50
affirmatively for the existence of such an ethic in international law. A number of
international instruments were cited to support their conclusion that international
environmental law had shifted to a non-anthropocentric paradigm. These
instruments typically refer to the intrinsic value of nature in their Preambles, but
when interpreted in context, these references seem more likely to be to nature’s
inherent value than to its intrinsic worth.
For example, Paragraph 3 of the Preamble of the Convention on the

Conservation of European Wildlife and Natural Habitats 1979,91 recognises “that
wild flora and fauna constitute a natural heritage of aesthetic, scientific, cultural,
recreational, economic and intrinsic value that needs to be preserved and
handed on to future generations”.92 The reference to wild flora and fauna as a
heritage to be preserved and handed on to future generations of humans makes
it quite clear that the underlying motivation for the conservation of nature in the
Convention cannot be other than anthropocentric. The operative provisions
support this interpretation. For example, the enhancement of protection only for
endangered and vulnerable species of wild flora and fauna under Articles 3 and
4, clearly suggest an underlying anthropocentric ethic for the Convention. The
explicit provision for “exploitation” of wild fauna under Article 7 also precludes a
non-anthropocentric motivation for the Convention.
Emmenegger and Tschentscher referred to the World Charter for Nature 1982
as the most important document that reflected a non-anthropocentric approach
transition towards a non-anthropocentric ethic, but recognised that the trend was still “in the
realms of developing international law”; Boyle further argued (at p. 52) that while some
international treaties are for human benefit, they were not exclusively so in the sense that the
concept of human benefit had been “drawn so broadly as to be indistinguishably ecocentric”; and
Redgwell conceded at (p. 87) that while international environmental law has increasingly
recognised the intrinsic worth of animals and nature, it falls short of the recognition of any
substantive rights of nature and animals. D’Amato and Chopra seem to be extrapolating from
the historical development of the international legal protection of whales that whales will have an
entitlement to life. They too acknowledge (at pp. 49-50) that international law is at present at the
“preservation stage”, but argue that the seeds of the final “entitlement stage” have been sown.
91
ETS No. 104.
92
Emphasis mine.
51
to environmental protection.93 It is true that the Charter declares a need for a
moral code of action, but read in its proper context; it seems that the moral
obligations in this respect are owed to other humans rather than to nature itself.
Furthermore, a review of the operative provisions in these instruments confirms
that their motivation is anthropocentric.
Paragraph 3(a) of the Preamble of the Charter states
Every form of life is unique, warranting respect regardless of its worth to man, and, to
accord other organisms such recognition, man must be guided by a moral code of action.
On its own, this paragraph may support both an anthropocentric as well as a

non-anthropocentric ethic. When read in the context of the remaining provisions
of the Charter however, it becomes untenable to argue that the Charter is non-
anthropocentric. Paragraphs 2, 4, and 5 of the Preamble, for example, stress
the benefit to present and future generations of humans in preserving other
species and the ecosystems. Even Paragraph 3 cautions against the exhaustion
of natural resources; the reference to nature as a resource is highly suggestive
of an anthropocentric conception of nature. Read as a whole, it is clear that the
motivation and justification for respect of other forms of life lie in human benefit.
In this context, Paragraph 3(a) seems more of an enlightened acknowledgement,
not unlike Leopold’s land ethic,94 of the need to look beyond the immediate
instrumental value of the environment and to consider its importance in
maintaining the stability and quality of the environment.
The operative provisions in the Charter confirm the anthropocentric character of

the Charter. Principle 3, for example, provides for an ecosystem to be valued
because of its rarity or ‘representativeness’ rather than because it has intrinsic
worth.95 This principle belies the Charter’s preambular proclamation of the
93
Emmenegger and Tschentscher, supra, p. 569. Gillespie also refers to the Charter to support
his argument, although he does not make the claim in such superlative terms as Emmenegger
and Tschentscher. See Gillespie, A., supra, p. 128.
94
Leopold, A. C, “The Land Ethic” in A Sand County Almanac, supra.
95
Wilkinson aptly refers to this as “stamp collection approach to nature protection” (See
Wilkinson, D., supra, p. 31).
52
uniqueness of all life. Other principles96 similarly reveal an approach to the
protection of nature that is more consistent with an anthropocentric underlying
ethic.
Likewise, reference in the Convention on Biological Diversity 199297 to the

intrinsic value of biological diversity alongside its ecological, genetic, social,
economic, educational, cultural, recreational values prima facie suggests that the
Convention seeks, inter alia, to protect the intrinsic worth of biological diversity.98
When interpreted in the context of the other paragraphs in the Preamble,99 and
the objectives of the Convention in Article 1 however, it seems more likely that
humans are the intended beneficiaries of the maintenance of biological
diversity.100 The very hands-on approach to achieving biological diversity
advocated in the Convention towards biodiversity and the provisions for
sustainable use and access to genetic resources suggest an anthropocentric
appreciation of biological diversity for its instrumental and inherent value rather
than its intrinsic worth.101 In the final analysis, Boyle’s comments on the
Convention are ‘spot on’:
Despite the Preamble’s recognition of the ‘intrinsic value’ of biodiversity, including, its
ecological, cultural and aesthetic aspects, this is not a ‘preservationist’ convention: it
assumes human use and benefit as the fundamental purpose for conserving biodiversity,
limited only by the requirement of sustainability and the need to benefit future generations.
Thus, references to conservation of biodiversity must be read in conjunction with the use
102
of its components.
There is no doubt that international law has moved away from a narrowly
instrumental view of nature. References to “intrinsic value” and to obligations to
future generations increasingly appear in the Preambles of international
96
In particular, Principles 4, 6-10, and 23.
97
(1992) 31 ILM 822.
98
Emmenegger, S., and Tschentscher, A., supra, p. 547; and Gillespie, A., supra, p. 129.
99
In particular, paras. 21 and 23.
100
Contra the deep ecology position where biological diversity is an end in itself.
101
See for example, Arts. 6, 10, and 14.
102
Boyle, A. E., “The Convention on Biological Diversity” in Campiglio, L., et al, (eds.), The
Environment After Rio: International Law and Economics (London: Graham & Trotman, 1994), p.
115.
53
instruments, and sometimes even in the operative provisions. On their own, the
use of such terminology might suggest a shift to non-anthropocentric concern for
the environment, but when considered in the context of the instruments from
which they are drawn, such a suggestion becomes less credible. While the
motivation for environmental protection remains anthropocentric, non-
anthropocentric thinking has not been without effect. Rather than perceive
nature in purely instrumental terms, there has been a more enlightened
anthropocentric perspective, recognising the interrelatedness and
interdependence of the natural world of which we form a part.103
Animal Welfare and Nature Conservation in England
The main English wildlife protection and nature conservation legislation are the
Wildlife and Countryside Act 1981104 and the Conservation (Natural Habitats
etc.) Regulations 1994.105 The Countryside and Rights of Way Act 2000,106 will
give wildlife protection and nature conservation a major boost once Part III of the
Act comes into force.107 The 1981 Act and 1994 Regulations were passed
principally to implement the Council Directive 79/409/EEC of 2 April 1979 on the
conservation of wild birds108 and Council Directive 92/43/EEC of 21 May 1992 on
the conservation of natural habitats and of wild fauna and flora109 respectively,
so an examination of the underlying ethic of these Directives will shed light on
the derivative legislation.
The Birds Directive is concerned with the “conservation of all species of naturally
occurring birds in their wild state in the European territory of the Member
103
Kiss, A. C., and Shelton, D., International Environmental Law (London: Graham and Trotman,
1991), p. 11. See also Norton’s account of weak anthropocentrism in Norton, B. G.,
“Anthropocentrism and Nonanthropocentrism” (1984) Environmental Ethics 6: 131.
104
105
SI 1994/2716. Hereinafter “1994 Regulations”.
106
107
Pursuant to the Countryside and Rights of Way Act 2000 (Commencement No. 1) Order
2001, SI 2001/114, some provisions of the Act are already in force.
108
[1979] OJ L103/1. Hereinafter “Birds Directive”.
109
[1992] OJ L206/7. Hereinafter “Habitats Directive”.
54
States”.110 As the Preamble explicitly makes clear, conservation is aimed at “the
long term protection and management of natural resources as an integral part of
the heritage of the peoples of Europe…”. Under the Directive, Member States
are required to maintain or adapt the population in these species at or to “a level
which corresponds in particular to ecological, scientific and cultural
requirements, while taking account of economic and recreational
requirements”.111 While certain rare and endangered species are subject to
special conservation measures,112 other species, owing to their population level,
geographical distribution and reproductive rate may be hunted under controlled
circumstances.113 Even in respect of species of birds that are subject to special
conservation measures, the European Court of Justice has confirmed that
Member States may undertake projects that disturb these species and damage
their habitats if these projects have “offsetting ecological benefits”.114 The whole
mechanism for the protection of wild birds is thus one of active management for
the benefit of the “peoples of Europe”, in accordance with our conceptions of
what ought to be the proper balance of numbers for each species.
Besides protecting wild birds, the 1981 Act also protects certain other species of
animals (e.g., bats, reptiles, amphibians, rare mammals, fish and butterflies). It
is an offence to harm these animals, their nests, and their eggs.115 An
anthropocentric approach to protection of wildlife is evident from the exceptions
to the general prohibition: the killing or taking of game birds is permitted; and
pest species may also be killed or taken and their nests and eggs destroyed by
the owner or occupier of the land.116 Wild plants receive even less protection;
they may be destroyed at will by the landowner or on his behalf.117
110
Art. 1.
111
Art. 2.
112
Art. 4(1).
113
Arts. 7 and 8.
114
Commission of the European Communities v. Federal Republic of Germany Case C-57/89,
[1991] ECR I-883, para. 26.
115
ss. 1, 9, 10, 11, and 16.
116
s. 2(2).
117
ss. 13(1) and 27(1).
55
European protected species of animals and plants species that are protected
under the Habitats Directive receive protection under the 1994 Regulations. Like
the protection scheme under the 1981 Act however, only selected species are
protected. Protection of animal species may also be subject to overriding public
interest of an economic or social nature118 or to the interest of “preventing
serious damage to livestock, foodstuffs, crops, vegetables, fruit, growing timber
or any other form of property or fisheries”.119 The introduction of the 2000 Act
does not change the underlying anthropocentric motivation for wildlife protection.
That is not to say that the provisions of the 2000 Act are not a significant
development in wildlife protection; on the contrary, when the relevant provisions
come into force, the enforcement of wildlife species controls under the 1981 Act
will be enhanced by the increase of enforcement powers and the creation of new
offences and penalties under the Act.120 This enhancement demonstrates a
greater commitment to the protection of wildlife, but does not necessarily signal a
change in the anthropocentric ethic of wildlife protection.
Other sources of legal protection for animals are also anthropocentric. The
Protection of Animals Act 1911, for example, protects captive or pet animals, the
ones with which we tend to be more intimate. Even then, protection is not
absolute; it only prohibits unnecessary suffering,121 the necessity or otherwise of
the suffering being determined according to whether it furthers a human
purpose.122 Like the 1911 Act, the objective of the Wild Mammals (Protection)
Act 1996 is animal welfare and the prevention of animal cruelty rather than
nature conservation. Again, only selected species of animals are conferred
favourable protected status, and even then, benefit to humans may justify cruelty
118
reg. 4(2)(e).
119
reg. 40(5).
120
2000 Act, s. 81 and Sch. 12.
121
s. 1.
122
According to Lord Coleridge, C.J. in Ford v. Wiley (1889) 23 QBD 203, 209-10, for example,
“That without which an animal cannot attain its full development or be fitted for its ordinary use
may fairly come within the term "necessary," and if it is something to be done to the animal it may
fairly and properly be done. What is necessary therefore within these limits, I should be of
opinion may be done even though it causes pain; but only such pain as is reasonably necessary
to effect the result”.
56
to such animals. Thus, one can only surmise that the underlying ethic of the
statute is anthropocentric.
Similarly, the Habitats Directive demonstrates an anthropocentric ethic with an

approach to the maintenance of biodiversity that takes account of “economic,
social, cultural and regional requirements”.123 This in itself suggests that the
maintenance of biodiversity is for its instrumental and inherent value rather than
because biodiversity has intrinsic worth.124 More explicitly, the Preamble
declares that “the maintenance of biodiversity may in certain cases require the
maintenance, or indeed the encouragement, of human activities”. Special areas
of conservation are designated to ensure the restoration or maintenance of
natural habitats and species of Community interest125 at a favourable
conservation status.126 Each Member State contributes to the creation of a
coherent European ecological network127 of sites hosting specified natural
habitat types and the habitats of specified species128 by maintaining and
developing features of landscape that are of major importance for wild fauna and
flora from the viewpoint of improving the ecological coherence of the European
network.129 While some species of wild fauna and flora are protected, others
may be exploited if this is compatible with their maintenance at a favourable
conservation status, this selective approach reflects an anthropocentric ethical
basis of environmental concern.
The provisions in the 2000 Act for the conservation of biodiversity also reveal an
123
Preamble.
124
By this time, environmental protection had a firm base in the Treaty Establishing the
European Community. Art. 130R of the Treaty (now Art. 174 of the Consolidated Version of the
Treaty Establishing the European Community [1997] OJ C340/173, hereinafter “Consolidated
Version of the EC Treaty”) left no doubt that the underlying motivation for EC environmental
policy is anthropocentric.
125
The criteria for “Community interest” are set out in Article 1(c) and are anthropocentric in
focus.
126
Preamble para. 7. See definition of “favourable conservation status” in Art. 1. The exercise of
determining what is favourable is very much from a human centred perspective.
127
Art. 3.2.
128
Art. 3.1.
129
Arts. 3.3 and 10.
57
anthropocentric approach. Under s. 74(1), ministers and government
departments are required, when exercising their functions, to have regard, as far
as is consistent with the exercise of its function, to the purpose of conservation
of biological diversity in accordance with the Convention on Biological Diversity
1992. As I had argued earlier, the purpose of and approach to conserving
biodiversity under the Convention is anthropocentric. By extension, the aims of
the Act must therefore also be construed in the same anthropocentric light.
Habitats are also protected for their instrumental and inherent value. Natural
habitats receive protection through site designation. The declared aim of
designation is to conserve sites for research and education. The two principal
designations are the Sites of Special Scientific Interest130 and National Nature
Reserves131. Sites may be designated SSSIs for their “special interest by reason
of any of its flora, fauna or geological or physiological features”.132 Once a site is
designated, the owner or occupier is not allowed to carry out a range of
potentially damaging operations on the site without first notifying the
conservation authority. An area may be declared and managed as an NNR if it
is expedient and in the national interest to do so. Such an area is then managed
for study or research into flora, fauna or geophysical interest, or for preserving
such features that are of special interest.133 The protection and management of
SSSIs will be given a boost under the 2000 Act. Conservation agencies will
have new powers to withhold consent to operations likely to damage the features
of special interest and to require owners and occupiers to conserve and/or
restore the features by reason of which an SSSI is of special interest.134
Specified authorities will also come under a new duty to “take reasonable steps,
consistent with the proper exercise of the authority's functions, to further the
conservation and enhancement of the flora, fauna or geological or
physiographical features by reason of which the site is of special scientific
interest”.135 Yet, the criteria for designation and protection of SSSIs and NNRs
130
Hereinafter “SSSIs”.
131
Hereinafter “NNR”.
132
1981 Act, s. 28.
133
National Parks and Access to the Countryside Act 1949, s. 15.
134
s. 75 and Sch. 9.
135
Sch. 9, para. 28G.
58
remain anthropocentric - the protection of human interest in certain natural
aspects of the sites.
Conclusion
This brief review of law relating to the protection of wildlife and nature
conservation suggests that even within a supposedly ‘nature-oriented’ area of
law, the motivation for environmental protection is anthropocentric. We may
prima facie infer from this that other less nature oriented areas of law and
environmental decision-making such as town and country planning and pollution
control are at least, if not more, human-centred.
Properly adopting a non-anthropocentric environmental ethic will require that we

cannot rationally justify putting the worth of our life above the worth of non-
human life; there is no reason to suggest that the importance of a flourishing life
to a non-human is any less than the importance of a flourishing life to us unless
we resort to anthropomorphic criteria. Even if we accept that we are not at the
centre of the universe, and that nature exists for its own sake and not for human
benefit, it does not follow that there is any moral or practical reason to adopt a
non-anthropocentric approach to environmental decision-making and to
knowingly or instinctively value the survival of our species above the survival of
other species.136
The prevailing environmental ethic and its associated approach to environmental

decision-making remains anthropocentric, but not narrowly so. The purpose of
public protection of the environment is still human preservation and
advancement. As the most evolved species in terms of consciousness, we do
not seek mere biological survival; the quality of our existence matters as well.
Since we do not live in a vacuum, acting in our interests logically extends to
acting in way that maintains or improves the conditions favourable for us to
thrive. This may incidentally benefit other species, but this incidental benefit is
not and need not be the motivation for our actions.
136
See Murdy, W., H., “Anthropocentrism: a Modern Version” (1975) Science 187: 1168 for an
elaboration of this idea.
59
I show in the next chapter that enlightened anthropocentric environmental
decision-making requires us not only to take a holistic view of our relationship
with our environment; more importantly, it also requires us to re-examine our
relationship with one another within and between generations in respect of how
we manage natural resources. It is not in our common interest to adopt an
egoistic approach to environmental decision-making; the primary objective of
environmental decision-making must be to contribute to sustainable
development, by ensuring intra-generational and intergenerational equity in
accessing natural resources for human needs.
60
Chapter 3: Sustainable Development as Justice
In this chapter, I examine the concept of sustainable development. I argue that

sustainable development articulates the goal to which must actions must be
oriented if we are ensure the continued availability of natural resources in order
for the human species to continue to flourish. Yet, as long as disparity in
economic and political power exists, the economically and politically influential
will always have little incentive to voluntarily put the common interest before their
narrow self-interest, and to share their privileged access to natural resources
with the disenfranchised.
The Emergence of Sustainable Development
The concept of sustainability was borrowed from the technique in forest

management practised by central European foresters in the eighteenth and
nineteenth centuries,137 and was originally primarily an economic management
technique,138 not motivated by ecological or biological considerations.139
The words “sustainable development” were not used at the Stockholm

Conference, but it is generally acknowledged as the starting point in the
evolution of the concept. Even before the conference, there had been a growing
concern about the failure of prevailing models of development to improve the
well-being of developing countries. The conventional wisdom in the 1960s had
been that rapid industrialisation in the footsteps of the West was the key to
modernisation and progress for the poorer developing countries. Development
practitioners assumed that rapid economic growth and industrialisation in
developing countries would automatically remove poverty through a "trickle
down" effect on the poor and the underprivileged. GNP growth was the measure
137
Schutt, P., “Sustainability of Forests: an Attempt at a Biological Interpretation” in MacDonald,
C. J., (ed.), Environmental Ethics: Sustainability, Competition, and Forestry (1992). As at 2 April
2002, online at http://www.ethics.ubc.ca/papers/susdev.html#schutt.
138
According to Schutt, the technique involved cutting a quantity of timber equivalent to 1/100 of
the total volume every year, in a rotation period of 100 years. This procedure assured a
permanent economic use of the forest.
139
Schutt, P., supra.
61
of success and improvements in social conditions would follow it. By the end of
that decade however, the conventional wisdom had been discredited. It became
clear that while the development policies pursued in some of the developing
countries had been successful in economic terms, social objectives had not been
met. Thus, while the GNP in many poor countries had improved, the benefits of
economic growth were only enjoyed by a privileged few in these countries.
Increasing income inequality led to a worsening rather than improvement of the
welfare of the majority of the population. The local environment on which they
depended for their livelihood was systematically degraded, and the local
population became poorer and hungrier. Most of them continued to live lives far
below the minimum levels required for a decent human existence, deprived of
education, health and sanitation. In the words of the Independent Commission
on International Development Issues,140
The hope that faster economic growth in developing growth in developing countries by
itself would benefit the broad masses of poor people has not been fulfilled. In many
countries there are many people excluded from economic growth as well as from
participation in shaping their own environment; they live in conditions of absolute poverty
141
and misery unworthy of mankind.
At the same time, the developed countries had come to realise that the
environmental impacts of industrialisation could not be confined to the country in
which they originated. They were particularly concerned with the effect of
environmental destruction in the South, such as loss of rainforests,
desertification, loss of biodiversity, and population pressures, on the quality of
life in affluent countries. The developing countries saw this concern for the
environment by the developed world as a threat to their development through
industrialisation. It seemed to them that the rich countries, having made their
fortunes by exploiting their own, and sometimes their former colonies’ natural
resources and degrading the environment, were now anxious to try to prevent
the poorer countries from doing the same. Furthermore, the rich countries
140
Hereinafter “ICIDI”.
141
Independent Commission on International Development Issues, North-South: a Programme
for Survival. The Report of the Independent Commission on International Development Issues
under the Chairmanship of Willy Brandt (London: Pan Books, 1980), p. 24. Hereinafter “Brandt
Report”.
62
seemed to overlook their grossly disproportionate consumption of natural
resources to support their affluent lifestyle.142
Concern about the failures and the environmental consequences of existing

models of development started coming together at a preparatory meeting for the
Stockholm Conference. At that meeting at Founex, Switzerland, the affluent
countries accepted that lack of development could be as important a cause of
environmental destruction as development. Paragraph 4 of the Preamble of the
Stockholm Declaration on the Human Environment 1972143 subsequently came
to reflect this acceptance. There was also a vague consensus that
developmental and environmental goals could be harmonised to the benefit of
both, but no elaboration on the means for achieving this.
The Stockholm Conference was not the first attempt by the international
community to reach agreement on environmental matters.144 It was, however,
the first major attempt to involve all the nations of the world as a concerted,
constructive response to global environmental problems, and to look beyond the
immediate problems to deeper issues. The Conference was of great importance
because representatives from both industrially developed and developing
countries attended it, and it was recognised for the first time that environmental
degradation was related to industrialisation as well as underdevelopment.145
Also, for the first time, governments discussed the universal nature of
environmental degradation and environmental protection as a global policy
issue.
The Stockholm Declaration expressed an anthropocentric concern for the effect

of environmental harm on the physical, mental and social well-being of
humans.146 Natural resources had to be safeguarded for the benefit of the
142
Reid, D., supra, pp. 17-8.
143
(1972) 11 ILM 1416. Hereinafter “Stockholm Declaration”.
144
See Sands, P., Principles of International Environmental Law, Vol. 1: The Legal and
Institutional Framework (Manchester: Manchester University Press, 1994), pp. 25-34, for a
description of the international legal developments from the second half of the 19th century up to
the Stockholm Declaration, supra, in 1972.
145
Preamble para. 4.
146
Preamble paras. 1 and 3.
63
present and future generations of humans. The developed countries would
transfer substantial quantities of financial and technological assistance to assist
the developing countries in accelerating their development.147 While all states
retained their right to exploit their own natural resources,148 the environmental
policies of all states were required to enhance the development potential of
developing countries.149 Finally, developing countries would receive technical
and financial assistance to preserve and improve the environment.150
Economic and social developmental goals and environmental goals were both to
be considered important. These goals were to be integrated and coordinated
through “rational planning”; with natural resources coming under the
management of “appropriate national institutions” rather than the agencies
responsible for development.151 The Conference was not so much concerned
with the failure of development itself, so the question of redefining development
goals was not addressed. The emphasis was on the proper management of the
negative side effects of development, i.e., environmental degradation.
Environmental resources had to be safeguarded for all people and for their
posterity.152
The Stockholm Declaration and its accompanying Action Plan for the Human
Environment153 advocated an essentially top-down technical approach to
environmental management, relying on the “rational management of resources”
and “rational planning”154 through the application of science and technology in
the identification, avoidance and control of environmental risks, and solution of
environmental problems.155 There did not seem to be any role for the public
except that adults and the younger generation needed to be educated in
environmental matters in order to “broaden the basis for an enlightened opinion
147
Principle 9.
148
Principle 21.
149
Principle 10.
150
Principle 12.
151
Principle 17.
152
Preamble para. 7; and Principle 1.
153
(1972) 11 ILM 1421.
154
Principles 13 and 14.
155
Principle 18.
64
and responsible conduct by individuals, enterprises and communities in
protecting and improving the environment”.156 Nevertheless, the Declaration did
assert the “right to freedom, equality, and adequate conditions of life”157 and
called for support for the “just struggle of the peoples of all countries against
pollution”.158
By the time the World Conservation Strategy: Living Resources Conservation for
Sustainable Development159 was published in 1980, the term sustainable
development had been coined, and the concept had become an important part of
conservationist and environmentalist thinking.
In 1987, the WCED published its report, Our Common Future.160 The
Commission was chaired by Gro Harlem Brundtland, the then Prime Minister of
Norway, and comprised 22 distinguished world figures, including foreign
ministers, finance and planning officials, policymakers in agriculture, science and
technology, with a clear majority of members from developing countries to reflect
world realities. These Commissioners had wide experience in, and came not
only from environment or development related disciplines, but from all areas of
vital economic and social decision-making, both nationally and internationally”.161
The UN General Assembly had tasked the WCED to “propose long-term
environmental strategies for achieving sustainable development by the year
2000 and beyond …”.162 Recognising that the causes of failures of
‘development’ and “failures in the management of the human environment”163
were “interlocking crises”,164 the WCED rejected calls to limit its considerations
to only environmental issues.165
156
Principle 19.
157
Principle 1.
158
Principle 6.
159
World Conservation Union (IUCN), World Conservation Strategy: Living Resources
Conservation for Sustainable Development (Gland, Switzerland: IUCN, 1980).
160
World Commission on Environment and Development, supra.
161
Ibid., p. xii.
162
Ibid., p. ix.
163
Ibid., p. 2.
164
Ibid., p. 4.
165
Ibid., p. x.
65
The WCED adopted a transparent and participatory approach to its work and
strategies so as to ensure that it received the broadest range of views and
advice on the key issues. It held deliberative meetings, site visits and public
hearings in all regions of the world, and invited government officials, scientists
and experts, researchers, non-governmental organisations and the general
public to express their concerns and submit their views and advice on issues of
common concern that transcended national boundaries and different cultures.166
The WCED defined sustainable development as “development that meets the

needs of the present without compromising the ability of future generations to
meet their own needs”.167 It had become clear that the world’s natural
resources, strained as they already were, were in no position to accommodate
the development of the rest of the world, through rapid industrialisation and
conspicuous consumption, to the standard of living being enjoyed by the already
developed countries. New models and strategies for development were
necessary. Over the years, many different definitions of sustainable
development have surfaced, but the WCED’s definition has remained the most
authoritative and most commonly cited.
The WCED stressed the need to change the misconception of development as

economic growth - development was not about becoming richer. It was what
humans did to improve their lot;168 and was concerned with the satisfaction of
essential human needs and aspirations.169 While economic growth was
important, the emphasis should be on the quality and not the quantity of
growth.170 Growth had to be less intensive in material and energy use, and more
equitable in impact.171 It had to focus on human needs and well-being of a non-
economic nature, e.g., education and health, clean air and water, and the
166
Ibid., pp. 358-9.
167
Ibid., p. 43.
168
Ibid., p. xi.
169
Ibid., p. 54.
170
Ibid., p. 52.
171
Ibid., loc. cit..
66
protection of natural beauty.172 It had to focus on removing disabilities from
disadvantaged groups,173 and diverting its benefits to where it was needed most
– the people living in poverty.174
The WCED also reiterated the need for integration of developmental and
environmental issues. The Stockholm Conference had started to integrate the
two, but in the years after the Conference, the environment had once again
come to be treated as an isolated entity and managed as such. In the opinion of
the WCED, further integration of environmental and developmental issues was
required both internationally and nationally; not only were the two linked, they
were two sides of the same issue and were inseparable.175 It was not enough
simply for development agencies to decide on development issues and leave the
environmental agencies to deal with and mitigate the adverse environmental
impacts of those decisions, as the Stockholm Declaration had proposed.
Environmental policy had to focus on the sources of environmental effects rather
than the effects themselves, and every agency had to be directly responsible
and fully accountable for ensuring the ecological as well as economic
sustainability of their policies and programmes.
For nations in which the essential needs of the majority of the population
remained unmet,176 reviving economic growth was a necessity.177 Growth
however, had to take account of the realities of the stock that sustained it and
not deplete the natural resources required to meet the needs of future
generations.178 It also had to be more equitable in impact179 to ensure that the
poor received their fair share of the resources to sustain that growth.180
Economic growth in industrialised nations was welcomed because it would
172
Ibid., p. 53.
173
Ibid., loc. cit..
174
Ibid., pp. 49-52.
175
176
Ibid., p. 8.
177
Ibid., p. 44.
178
Ibid., p. 52.
179
Ibid., p. 51.
180
Ibid., p. 8.
67
support the growth of the developing countries,181 but had to follow the principles
of sustainability and non-exploitation of others.182 Finally, because high rates of
population growth compromised the goal of meeting needs, population growth
had to be restrained. This was however not a matter of controlling the numbers;
as development increased well-being and security, population growth could be
expected to slow down.183
Beyond a technical management approach to attaining physical sustainability;184

i.e., living within ecological limits, the WCED noted the link between
environmental and economic problems, and social and political factors,
particularly the distribution of power and influence within society.185 For the
Commission, sustainability implied a concern for equity between generations, a
concern that had to be logically extended to equity within each generation.
Physical sustainability could only be secured if development policies took
account of social considerations such as changes in access to resources and the
distribution of costs and benefits.186
Our Common Future led to the UN General Assembly convening the United
Nations Conference on Environment and Development187 at Rio in 1992, to
“elaborate strategies and measures to halt and reverse the effects of
environmental degradation in the context of strengthened national and
international efforts to promote sustainable and environmentally sound
development in all countries”.188 At the Earth Summit, delegates negotiated and
agreed, inter alia, to two key documents, the Rio Declaration189 and Agenda
21.190
181
Ibid., p. 51.
182
Ibid., p. 44.
183
Ibid., p. 98.
184
Ibid., pp. 45-6.
185
Ibid., pp. 37-8.
186
Ibid., p. 43.
187
UN GA Res. 43/196 (1988). Hereinafter ”Earth Summit”.
188
Rio Declaration, supra, para.3.
189
Ibid..
190
Ibid..
68
Like the Stockholm Declaration, the Rio Declaration represents the broad
consensus of the international community. It affirms an anthropocentric
approach to environmental and developmental issues,191 and declares its goal to
be the establishment of a new and equitable global partnership; and the respect
of the interests of all and protection of the integrity of the global environmental
and developmental systems.192
Under the Declaration, States acknowledge that they have “common but
differentiated responsibilities” to achieve sustainable development.193 The
developed countries accept that they have to reduce and eliminate
unsustainable patterns of production, while the developing countries agree to
promote “appropriate demographic policies”.194 States continue to have the
sovereign right to exploit their own natural resources, but must ensure that they
do not cause environmental damage to areas outside the limits of their
jurisdiction. They still have a right to develop, but must fulfil this right so as to
meet the needs of present and future generations.195 The eradication of poverty
worldwide, and in particular the needs of the least developed countries, is the top
priority and the responsibility of all States and all people.196
The Rio Declaration not only makes explicit the concept of sustainable
development that has been evolving in the intervening two decades between the
Stockholm Declaration and Our Common Future, it also contributes to its further
evolution. It is the first international instrument to accept and give prominence to
emerging principles of sustainable development, such as the “precautionary
approach”197 and the “polluter pays” principle.198
Accompanying the Rio Declaration, Agenda 21 is the blueprint and action plan
for sustainable development. Like the Declaration, it is a negotiated document
191
Principle 1.
192
Preamble.
193
Principle 7.
194
Principle 8.
195
Principle 3.
196
Principle 5.
197
Principle 15.
198
Principle 16.
69
that reflects the consensus of the international community and their commitment
towards the implementation of national strategies for the attainment of
sustainable development. It gives effect to the principles of the Declaration by
proposing national strategies, plans, policies and processes on various aspects
of sustainable development.
Ten years on, the Rio Declaration and Agenda 21, along with Our Common
Future, continue to provide the definitive understanding of what sustainable
development means. In 1997, the international community through the enabling
resolution for a Special Session, agreed to meet for the purpose of an overall
review and appraisal of the implementation of Agenda 21. They agreed not to
renegotiate the Rio Declaration and Agenda 21. Instead, discussions focussed
on “the fulfilment of commitments and the further implementation of Agenda 21
and related post-Conference outcomes”.199 The 19t h Special Session of the
General Assembly adopted a Programme for the Further Implementation of
Agenda 21, reaffirming the principles of the Rio Declaration and the status of
Agenda 21 as the fundamental programme of action for achieving sustainable
development. Similarly, the summit held in Johannesburg in 2002, popularly
named Earth Summit 2, only looked to “adopt concrete steps and identify
quantifiable targets for better implementing Agenda 21”.200 Sustainable
development therefore remains at the heart of environmental decision-making.
Sustainable Development as Distributive Justice
The WCED made it very clear that sustainable development is not simply a
matter of tagging on environmental considerations as a constraint on the present
mode of development, namely through economic growth and the increase of
man-made wealth; it is far more radical than that. Recognising that current
models of economic development had failed to meet the needs of the present
generation, and at the same endangered the ability of future generations to meet
their needs, sustainable development requires a new mode of development
whereby the “exploitation of resources, the direction of investments, and the
199
UN GA Res. 51/181, para. 5 (20 January 1997).
200
Official Website for the Johannesburg Summit 2002. As at 27 Marrch 2002, online at
http://www.johannesburgsummit.org/html/basic_info/basicinfo.html.
70
orientation of technological development” are in harmony with the goal of
enhancing current and future potential to meet human needs and aspirations.201
What lies at the core of sustainable development? What is its essence? The
WCED made it clear that at the core of sustainable development lie “equity and
the common interest”.202 Within the framework of sustainable development,
environmental decision-making is our common interest in equitably sharing
access to natural resources across space and time for the meeting of human
needs.
Justice Versus Humanity
The duty to meet the needs of the present generation of the poor without
compromising the ability of future generations to meet their needs is more than a
duty to act humanely. The difference between justice and humanity is more than
a matter of semantics. Humanitarianism is an act of kindness to relieve
distress,203 whereas justice is a duty to give to a person that to which he is
entitled as a matter of right; a duty to act justly is more imperative than a duty to
act humanely. The law may not consider its function to include the enforcement
of humanitarian duties, but there is a more compelling case for the law to act
when it is a matter of justice. Barry captured the distinction between
humanitarianism and justice succinctly:
We cannot sensibly talk about humanity unless we have a baseline set by justice. To talk
about what I ought, as a matter of humanity, to do with what is mine makes no sense until
204
we have established what is mine in the first place.
201
202
Ibid., loc. cit..
203
Barry, B., “Humanity and Justice in Global Perspective”, in Pennock, J. R., and Chapman, J.
W., (eds.), NOMOS XXIV: Ethics, Economics and the Law, (New York: New York University
Press, 1982), p. 219.
p. 219.
204
Ibid., p. 249.
71
The WCED clearly intended sustainable development as a matter of justice
rather than humanitarianism by referring to “equity between generations” and to
“social equity within each generation”205. It pointed out that “our inability to
promote the common interest in sustainable development is often a product of
the relative neglect of economic and social justice within and among nations”,206
and believed that “people can build a world that is more prosperous, more just,
and more secure”.207 Noting that the poor do not get their “fair share of the
resources to sustain their economic growth”,208 and that as a generation, “we
borrow environmental capital from future generations with no intention or
prospects of repaying”,209 the WCED clearly considered the present
arrangement for sharing access to natural resources unjust. There is therefore
no question of sustainable development being a matter of justice rather than
merely a matter of humane behaviour.210
As a conception of distributive justice, sustainable development has two main

components. Firstly, it is concerned with the justice of access to finite natural
resources to meet human needs;211 everyone, whether from the present or the
future, is entitled to equitable access to natural resources to meet their needs.
For this purpose, the WCED draws a fundamental distinction between basic
needs and aspirational needs. Basic needs have to be met so that every person
can live above a basic level of decency. Beyond basic needs, aspirational needs
can legitimately be pursued provided everyone also has the opportunity to satisfy
their aspirations,212 and consumption standards do not exceed ecological limits
and that which all can reasonably aspire to. Secondly, sustainable development
is concerned with the fairness of the distributive effects of the use of natural
205
206
Ibid., p. 49.
207
Ibid., p. 1.
208
Ibid, p. 8.
209
Ibid., loc. cit..
210
The Rio Declaration, supra, reflects the same position, declaring its goal to be that of
“establishing a new and equitable global partnership” (Preamble); and requiring that
development “equitably meet [the] developmental and environmental needs of present and future
generations” (Principle 3).
211
212
Ibid., p. 44.
72
resources; no one should suffer a disproportionate share of harm from the
depletion of natural resources.213
Intra-generational Justice
As the WCED rightly pointed out, access to natural resources is clearly

inequitable; the economically and politically weak invariably live in the worst
environments.214 The privileged have the economic and political means to
command access to the prime natural resources for meeting their needs while
the poor and politically disenfranchised must scrape the bottom of the barrel of
meagre natural resources in order to survive. Many people in the poorer
countries rely directly on their local environment for a livelihood but are forced to
resort to destroying this local environment with no regard for the future in order
to meet immediate survival needs.215 As natural resources begin to dwindle, the
wealthy and powerful will continue to retain access to these resources while the
less privileged will have to learn to cope with increasingly fewer resources or
perish. Internationally, affluent countries have the means to ‘import’
sustainability through the non-sustainability of other countries.216 Because of
their superior purchasing power in a global market economy, they are largely
able to shield themselves from the environmental costs of their affluence by
import natural resources at relatively affordable cost to themselves, while
exporting their wastes to poorer countries where environmental concerns are
less of a priority because there are more urgent and immediate survival issues to
contend with. When environmental disasters finally strike, most of the victims
come from the impoverished in poor communities; as noted by the WCED,
“[l]acking food and foreign exchange reserves, their economically vulnerable
governments are ill equipped to cope with such catastrophes”.217
213
Ibid., p. 48. I use the term “deplete” not only to refer to the reduction of the stock of natural
resources, but also to include the degradation of the capacity of natural resources to assimilate
our wastes.
214
Ibid., p. 49.
215
Ibid., p. 28.
216
Pearce, D., Markandya, A., and Barbier, E., supra, p. 45.
217
73
Intra-generational justice requires development that gives overriding priority to
meeting the basic needs of all and extends to a fair opportunity to satisfy their
aspirations for a better life.218 Basic needs take priority over aspirational needs
because the former are the minimum requirements for a dignified human life.
While it would be good for everyone to meet their aspirations, it would be
inequitable for some to pursue these needs at the expense of the basic needs of
others.
Meeting Basic Needs
The overriding priority of meeting basic needs has been endorsed in numerous
international legal instruments.219 Based on the human right to a decent life,220 it
includes provision for the needs that prevent a person from leading such a
decent life. Respecting humanity means that where resources permit, each
person should at least have access to the resources to live a dignified life.
Meeting basic needs is not only important because it is necessary for human
dignity. It is also an investment in human resources in the long term. Where
basic needs remain unmet, people cannot choose to use the natural resources in
their local environment prudently. They often resort to destroying their
immediate environment by depleting and overusing local natural resources in
order to meet day-to-day challenges to their survival.221 By doing so, they
effectively destroy their medium and long-term chances of survival, as well as
deprive future generations of access to these natural resources to meet the
latter’s needs. Only after their basic needs have been met can people be
reasonably expected to choose a less destructive way of life.
People with unmet basic needs often also have little security in their lives.
Having more children to help contribute to household income, and later as
218
Ibid., p. 44.
219
See for example, Universal Declaration of Human Rights, 1948 (UN Doc. A/810, at 71),
Article 25.1; Stockholm Declaration, supra, Preamble para. 4; Rio Declaration, supra, Principle 5.
220
221
Ibid., p. 28.
74
security for old age compensates for this insecurity.222 Because of high infant
mortality rates, people have more children to make allowance for premature
deaths, but this only aggravates the problem as a rising population means that
there will eventually be even fewer resources for meeting each person’s basic
needs. People can only freely determine the number of children to have when
there is an assurance of an adequate livelihood and a reduction of the infant
mortality rate.223 When basic needs are met, people no longer become a liability
- mere consumers of resources, but a human resource.224 In the long term, a
healthy and educated humanity will be able to better meet their needs from
dwindling natural resources.
The obvious basic needs include hunger, warmth, and shelter (including energy,
water, sanitation and health care).225 Disadvantaged people, such as tribal
groups and nomads may need additional resources to meet these needs.226
However, food-aid or outright charity alone is insufficient and may sometimes
even be counter-productive; non-emergency food aid may actually harm Third
World countries by reducing their self-reliance.227 The need for sustainable
livelihoods is also a basic need.228 Sustainable livelihoods may in turn require
formal education and training.229
The WCED equates the meeting of basic needs with the eradication of
poverty,230 which it defines as a “level of income below which a person or
household cannot afford on a regular basis the necessities of life”.231 This
contradicts its own view that development is not about “what poor nations should
222
I am simplifying this point. Often, unbridled population growth can also be traced to gender
inequality.
223
Ibid., p. 106.
224
Ibid., pp. 108-9.
225
Ibid., pp. 54-5.
226
Ibid., pp. 53, and 114-6.
227
Ibid,, p. 122. Principle 1 of the Rio Declaration, supra, also refers to the entitlement of
humans to a “healthy and productive life”.
228
Ibid., p. 54. The WCED described it as the most basic of needs.
229
Ibid., pp. 103, and 111-4.
230
Ibid., p. 43. See also Principle 5 of the Rio Declaration, supra.
231
Ibid., p. 50.
75
do to get richer”.232 If meeting basic needs eradicates poverty, then poverty can
be understood as the deprivation of access to resources to meet basic needs.
As pointed out in the Human Development Report 2000 a n d the World
Development Report 2000/2001: Attacking Poverty, poverty is multi-dimensional.
At the heart of poverty are deprivations that prevent people “from leading the
kind of life that everyone values”;233 the deprivation of capabilities “to live a long
and healthy and creative life, to be knowledgeable, to enjoy a decent standard of
living, dignity, self-respect and respect of others”.234
It is not enough to identify the basic needs; access to resources to meet them
must be found. Within poorer countries, deprivation of basic needs may be a
result of both production and distribution. On a global scale, however, the
problem of meeting basic needs is one of distribution, not scarcity of
resources.235 As long as basic needs remain unmet in a world of finite natural
resources, it would be inequitable to divert resources to the pursuit of
aspirational needs.
Satisfying Aspirations for a Better Life
Once basic needs have been met, natural resources can be channelled towards
satisfying aspirations for an improved quality of life.236 Aspirational needs are of
a lower urgency than basic needs. They are generally more subjective than
basic needs in that there is a greater diversity between individuals as to what the
good life entails. While a person’s aspirational needs may require a
disproportionate exclusive access to natural resources, but sustainable
development is only concerned with satisfying legitimate aspirational needs. As
the WCED pointed out, this means that consumption standards beyond the basic
minimum must not go beyond the “bounds of the ecological possible and that
232
Ibid., p. xi.
233
World Bank, World Development Report 2000/2001: Attacking Poverty (New York: Oxford
University Press, 2001), p. 1.
234
United Nations Development Program, Human Development Report 2000 (Oxford: Oxford
235
Ibid., p. 118.
236
76
which it is reasonable for all to aspire”.237 In similar vein, Principle 8 of the Rio
Declaration calls for the reduction and elimination of unsustainable patterns of
consumption.238
Intergenerational Justice
The requirement that consumption standards beyond the basic minimum must
not go beyond the bounds of the ecologically possible may be understood as
one aspect of the requirement of intergenerational justice that future generations
should not be bequeathed with fewer resources than that inherited by the
present generation for meeting needs.239 Like us, future generations will have
needs to be met and for which they will therefore also require access to natural
resources. We may not know what all the needs of future generations will be,
but can expect that some of these needs, e.g., hunger, and thirst, etc., will not be
very different from present needs even though the way these needs are met may
change. Other needs will not be like anything imaginable today. When we
deplete natural resources beyond ecological limits without regard for future
generations, we unjustly jeopardise the future generations’ ability to meet their
needs.240
Noting that it was unrealistic to expect to leave all natural resources intact,241 the
WCED’s advocated the pursuit of a moderately “strong” conception of
237
Ibid., loc. cit.
238
I understand the Declaration to be referring not just to temporally unsustainable consumption
standards, but also to spatially unsustainable consumption standards. The two are intimately
related; one without the other would not make much sense.
239
World Commission on Environment and Development, supra, p. 43. In that sense, our duty
not to deprive future generations of their ability to meet their needs may be said to be negative.
This is in contrast to our positive duties to take action to meet the needs of the present
generation.
240
Ibid., p. 44.
241
Ibid., p. 45. Such an absolute approach is also unnecessary since we are presumably
bequeathing more capital resources and knowledge to future generations than we inherited. An
improving and increasing stock of such man-made resources can to some extent compensate for
a reduction in the stock of natural resources. The question of course is how much natural
resource can be safely displaced in the face of improvements in man-made resources. As we
77
sustainability - that natural and man-made resources are in principle not perfect
substitutes for one another242 - by adopting the maintenance of the present
quantity and diversity of natural resources as a baseline. It classified natural
resources into renewable and non-renewable resources.243
Living natural resources were renewable because they could reproduce or

regenerate. Non-living natural resources could neither reproduce nor
regenerate, but could be created by recurring natural processes, e.g., the
production of oxygen from photosynthesis. The depletion of renewable natural
resources was not without effect on the ecosystem; particular when these
resources were part of a complex and interlinked ecosystem.244 The depletion of
renewable natural resources beyond its reproduction or regeneration rate could
therefore lead to significant irreversible changes in the ecosystem during the
period of renewal. Thus, while the WCED acknowledged that “every ecosystem
everywhere cannot be preserved intact”, it considered it generally necessary for
sustainability to only allow a rate of depletion of renewable natural resources no
greater than the rate of regeneration and natural growth of these resources,
“after making allowances for the system-wide effects of exploitation”.245
The WCED was less stringent with regard to non-renewable natural resources.
It accepted that irreversible depletion of these resources was inevitable.
Depletion was therefore permissible, but the rate of depletion had to take into
account “the criticality of that resource, the availability of technologies for
minimizing depletion, and the likelihood of substitutes being available …
approach ecological thresholds, the further depletion of natural resources may, even if
accompanied by continuing increases in man-made resources, have dire consequences for
future generations.
242
A “weak” conception of sustainability on the other hand would regard all resources as capable
of being valued and expressed in a single metric; the improvements in the quantity and quality of
human resources can be economically valued and substituted for an equivalent value of a
quantity of a natural resource.
243
World Commission on Environment and Development, supra, pp. 45-6.
244
Ibid., p. 45.
245
Ibid., loc. cit..
78
Sustainable development requires that the depletion of non-renewable resources
should foreclose as few options as possible”.246
The WCED therefore sought to minimise the depletion of natural resources to

the extent feasible. The maintenance of the existing quantity and diversity of
natural resources and protection of the integrity of all ecosystems might not have
been a realistic or necessary goal, but it acted as a useful starting point. We
should not unnecessarily deplete natural resources faster than these resources
are renewable or generated. If irreversible depletion is unavoidable, we must
minimise depletion to “foreclose as few future options as possible”.247 Any
unavoidable depletion must always take place slowly and cautiously to allow
time to anticipate and mitigate unexpected effects on the ecosystems.
The Interdependence between Intra-generational and Intergenerational

Justice
The two principles of justice have been treated separately for the purpose of
analysis. They are, however, not independent of one another: the realisation of
one can contribute to the realisation of the other,248 but neither can be achieved
without the other. The present generation and future generations are part of a
continuous timeline, so it is not realistic to draw a rigid line between the two and
treat them differently. Furthermore, it is inconceivable that we should
contemplate the temporal but not spatial sustainability of natural resource use.
As the WCED has observed, intergenerational justice logically extends to intra-
generational justice.249
Intergenerational justice is more attainable if it is pursued hand in hand with

intra-generational justice. A generation whose members share access to
246
Ibid., p. 46.
247
Ibid., loc. cit..
248
Depending on the conceptions of intra-generational and intergenerational justice adopted, the
correlation between the two is not necessarily always positive. See Dobson, A., Justice and the
Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice
supra.
79
resources equitably is likely to require fewer resources in meeting its needs than
one that does not.250 Even if we bequeath the same quantity and quality of
resources to the next generation as we have inherited, there is no assurance
that 80% of the next generation will have access to these resources to meet their
basic needs if 80% of the present generation are unable to access these
resources to meet their basic needs now. To ensure adequate access to
resources for everyone in each of the future generations, we must therefore start
to narrow the present inequality in access to resources today. When the present
generation establishes just institutions for sharing access to natural resources,
and these institutions endure into the future, they ensure that individual members
of each generation will also share access to natural resources equitably to meet
their needs.251
Similarly, intra-generational justice becomes more difficult to achieve if it is

pursued in the absence of intergenerational justice. As the WCED explained,
“[A]s a system approaches ecological limits, inequalities sharpen”;252 intra-
generational justice become more difficult to attain as the ecosystems begin to
collapse and it becomes increasingly impossible even to meet all basic needs,
let alone any aspirational needs.
Intra-generational justice and inter-generational justice in access to natural

resources must not only be pursued simultaneously, they must also be pursued
globally. Sustainable development is global not least because the environment
249
250
In an intra-generationally unjust society, the affluent deplete a disproportionate per capita
share of natural resources for their needs, and the poor reproduce in unsustainable numbers,
and increasingly exploit whatever resources they can for day-to-day survival, with no regard of
the sustainability of such exploitation in the long term.
251
Beckerman, for example, considers that even before we consider how we should share
natural resources with future generations, our prior obligations are to bequeath to them a more
decent society in terms of its political and social institutions, social norms, degree of personal
liberty and respect for human rights. See Beckerman, W., “Sustainable Development and Our
Obligations to Future Generations”, in Dobson, A., (ed.), Fairness and Futurity: Essays on
Environmental Sustainability and Social Justice (Oxford: Oxford University Press, 1999), p. 71, at
89-90.
252
80
is ultimately globally connected. As the title of the WCED report, Our Common
Future, suggests, in the long term, those in each generation enjoying privileged
access to natural resources cannot shield themselves from the problems of the
poor and marginalised in their generation; continued environmental degradation
in one part of the world will eventually degrade the environment in other parts of
the world.
Motivation for Sustainable Development
So, why should we strive for sustainable development? Surely it is not in our
narrow self-interest to do so. Understanding our motivation for sustainable
development has important implications for the way we structure our decision-
making procedures. In particular, as I show in the next chapter, the procedures
for environmental decision-making need to be structured so as to stimulate not
suppress the motivation for sustainable development.
The Common Interest
The aim of sustainable development is to secure “sustained human progress not

just in a few places for a few years, but for the entire planet into the distant
future”.253 Its underlying premise is that “every human being … has the right to
life, and to a decent life”, whether they are from different communities or from
future generations.254 The WCED pointed out that in order to achieve
sustainable development, individuals must act in the “common interest” of
humanity, but our inability to act in the common interest is often a product of
economic and social injustice.255 According to the Commission, the most
important means of arousing this motivation to act in the common interest is
253
Ibid., p. 4. Emphasis mine.
254
Ibid., p. 41. Emphasis mine. Similarly, Principle 1 of the Stockholm Declaration, supra,
recognises a right to “a life of dignity and well-being”; and Principle 1 of the Rio Declaration,
supra, refers to an entitlement “to a healthy and productive life in harmony with nature”.
255
Ibid., loc. cit..
81
through effective participation in local community decision-making processes to
help each person to “articulate and effectively enforce their common interest”.256
In the Brandt Report, the ICIDI had considered that international reform that went
no further than the mutual interest of all parties would be inadequate; it would
excessively reflect the dominant interests of the powerful because “the ‘haves’
are rarely willing to relinquish their control and their resources and share them
with the ‘have-nots’”.257
The WCED too did not take the view that was necessarily in everyone’s narrow
self-interest to act in the common interest;258 it acknowledged that the search for
common interest would seldom produce solutions that would leave everyone
better off – “there are winners and losers”.259 In circumstances of gross disparity
of economic and political power, public participation in environmental decision-
making that is motivated by narrow self-interest will not contribute to sustainable
development as each participant jostles to maximise personal gain. Instead, one
can expect the outcome in such circumstances to mirror the distribution of
economic and political power amongst those affected by the decision.
Intergenerational justice would not appeal to the present generation, just as
intra-generational justice would not appeal to each generation’s privileged
members. The WCED’s reference in Our Common Future to the common
interest was therefore intended to mean something more than the “mutual
interest” referred to in the Brandt Report.260 Read together with the WCED’s
reference to the “unity of human needs”,261 the motivation for sustainable
development must be understood to be the ‘common interest of humanity’, akin
to the “human solidarity” referred to in the Brandt Report.262
256
Ibid., pp. 46-7.
257
Independent Commission on International Development Issues, supra, pp. 64-5.
258
259
Ibid., p. 48.
260
Independent Commission on International Development Issues, supra, Ch. 3.
261
262
Independent Commission on International Development Issues, supra, p. 64.
82
Thus, our motivation for sustainable development is not to benefits ourselves
individually, but to benefit our wider common interests as humans; as humans,
we share a common interest in the flourishing of humanity. We are dependent
on natural resources for our flourishing and recognise the same is true of
everyone else, present and future. In using these natural resources, we are
therefore motivated to act in terms of generalizable principles that all members of
humanity will reasonably accept is entirely proper for anyone else in the same
situation in order for all to flourish, whether on the giving or receiving end.
Barry came to similar conclusion about the motivation for justice in his theory of
justice founded on impartiality.263 According to him, we recognise that we are
only one of many moral equals, and by virtue of this reason, we are
consequently not entitled to act on reasons that we would not ourselves accept
were it offered by other moral equals in like circumstances as reasons for their
actions. According to Scanlon, the “desire to be able to justify [their] actions to
others on grounds they could not possibly reasonably reject” is quite strong in
most people, as they would go to considerable lengths in order to avoid
admitting that their actions and institutions are unjustifiable on impartial
grounds.264
Rawls has a similar formulation for impartiality-motivated justice.265 For him,

people choose principles of justice when they put themselves in the hypothetical
original position behind a “veil of ignorance”, i.e., without knowledge of how
“various alternatives will affect their own particular case and are obliged to
evaluate principles solely on the basis of general considerations”.266 Nagel
offers yet another formulation, suggesting that each person must choose
principles as though he expects to “lead all the possible lives in question, not as
263
Barry, B., A Treatise on Social Justice, Volume 1: Theories of Justice, (Berkeley: University of
California Press, 1989), pp. 284-90.
264
Scanlon, T. M., “Contractualism and Utilitarianism” in Sen, A., and Williams, B., Utilitarianism
and Beyond (Cambridge: Cambridge University Press, 1982), p. 103, at 116-7. Scanlon adds
that unreasonableness is to be determined according to what a person motivated to come to
informed unforced general agreement on principles with others similarly motivated would accept
or reject.
265
Rawls, J., A Theory of Justice (Oxford: Oxford University Press, 1973), pp. 136-42.
266
Ibid., p. 136.
83
a single super-life but as a set of distinct individual lives, each of them a
complete set of experiences and activities”.267 The foregoing are all monological
formulations in that they require a person to hypothetically deduce generalizable
principles that others could reasonably accept. In the next chapter, I consider a
dialogical conception of impartiality whereby generalizable principles emerge
through actual dialogue and consensus with people from diverse perspectives,
and explain why such a conception is superior to a monological one.
Conclusion
The WCED made it clear that development is what we do to improve the quality
of our lives. Development must be sustainable in spatial and temporal terms. It
must give priority to meeting basic needs. Only when basic needs have been
met should natural resources be diverted to provide opportunities to pursue
legitimate aspirations, i.e., aspirations that only require consumption standards
within ecological limits and what everyone can reasonably aspire to. Sustainable
development is a global concept.268 Partial sustainability is an oxymoron, firstly
because modern development takes place in the context of the global economy.
Today, virtually no country is self-sufficient in meeting its needs and completely
insulated from the external economic environment. Secondly, the natural
environment in each country is also spatially interconnected to the global
environment; ecosystems are not closed systems and certainly are not insulated
within political boundaries.269
The WCED drew attention to the fact that the environmental crisis is not
essentially a scientific or economic problem, to be solved by scientists or
economists, although scientific and economic inputs to environmental decision-
making will be essential. Instead, it is a social problem requiring a major social
267
Nagel, T., The Possibility of Altruism (Oxford: Clarendon Press, 1970), p. 141. Nagel
distinguishes his formulation from the utilitarian model of impartiality whereby the choice of
principles of justice is determined on the assumption that all lives are amalgamated into one life.
He argues that the utilitarian model is unacceptable because it ignores the distinction between
persons; sacrificing an individual’s happiness for another’s is very different from sacrificing one
gratification for another within a single life” (at p. 138).
268
Ibid., p. 40.
269
84
reorientation in the way humans organise to improve their condition, taking into
account the finite resources available.
We know what is just, yet, we may not always act justly because we do not
always think impartially. Nagel, for example, observed that, “[w]hen the stakes
are high, the temptations of solipsistic disassociation are considerable”; the
motivation to behave impartially is merely “our deep-seated susceptibility to non-
egoistic reasons, and our capacity to recognize them as requirements if the
issue is forced upon us with sufficient clarity”. 270
The challenges ahead cannot be underestimated, and the solutions are not
straightforward. As noted by Commoner,
None of us can possibly blueprint a specific “plan” for resolving the environmental crisis.
To pretend otherwise is only to evade the real meaning of the environmental crisis: that the
world is being carried to the brink of ecological disaster not by a singular fault, which some
clever scheme can correct, but by the phalanx of powerful economic, political, and social
forces that constitute the march of history. Anyone who proposes to cure the
271
environmental crisis undertakes thereby to change the course of history.
Similarly, the WCED was under no illusion that the pursuit of sustainable
development would be easy:
We do not pretend that the process is easy or straightforward. Painful choices have to be
272
made. Thus, in the final analysis, sustainable development must rest on political will.
Sustainable development is truly radical but not impossible to achieve. We have

the capacity to make environmental decisions in the common interest, but years
of conditioning of thinking individually in terms of narrow self-interest, not least
by present social structures and institutional arrangements, both national and
international, has dulled this capacity. We must start thinking and acting
impartially in the common interest if we want to achieve sustainable
development. The WCED suggested how this might be achieved: education,
270
Ibid., p. 124.
271
Commoner, B., supra, p. 300.
272
85
institutional development, and law enforcement.273 More importantly, in
circumstances of disparity in economic and political power, effective public
participation can facilitate the articulation and enforcement of the common
interest.274 I consider in the next chapter, what such “effective” public
participation entails.
273
Ibid., p. 46.
274
Ibid., p. 47.
86
Chapter 4: Public Participation’s Contribution to Sustainable
Development
Sustainable development tells us which outcomes are desirable and why. It is

however, not self-implementing; processes are needed to achieve desired
outcomes. I consider in this chapter, one aspect of the environmental decision-
making process - why and how public participation in environmental decision-
making can contribute to sustainable development. In doing so, I do not reject or
discount the argument that in addition to contributing to better substantive
outcomes, public participation may also have other roles to play in enhancing the
quality of environmental decision-making.1
Public participation in environmental decision-making did not become important

only with the emergence of sustainable development. In the 1960s, partly in
response to a growing demand by many groups for more opportunity and for
more say in the working out of policies which affected them, not merely at
election time, but continuously as proposals were being hammered out and
implemented, the Committee on Public Participation in Planning2 stressed the
importance of securing public participation in development planning:
People should be able to say what kind of community they want and how it should
develop … It matters to us that we should know that we can influence the shape of our
community so that the towns and villages in which we live, work learn, and relax may
reflect our best aspirations … The pace, intensity and scale of change will inevitably
bring bewilderment and frustration if people affected think it is to be imposed without
3
respect for their views.
1
In particular, public participation may be an important prerequisite for the legitimacy of public
decision-making in democratic societies, as the Committee on Public Participation and Planning,
and McAuslan, infra, explain below. Eckersley has also argued that public participation and
ecological values are both grounded in the principle of autonomy, so that one implies the other.
See Eckersley, R., “Greening Liberal Democracy: The Rights Discourse Revisited”, supra, p.
223.
2
Also known as the Skeffington Committee.
3
Committee on Public Participation and Planning, People and Planning: Report of the
Committee on Public Participation and Planning (London: HMSO, 1969), paras. 7 and 8.
87
McAuslan had also argued in the 1980s that the right to public participation was
the third “competing ideology” of planning law, based on the abstract principles
of democracy and justice:
all who are likely to be affected by or who have, for whatever reason, an interest or
concern in a proposed development of land or change in the environment should have the
right of participation in the decision on that proposal just because they might be affected or
4
are interested.
Sustainable Development and Public Participation
Public participation in environmental decision-making is an integral aspect of

sustainable development. The WCED reported in Our Common Future that “a
political system that secures effective citizen participation in decision making” is
necessary but not sufficient for the pursuit of sustainable development.5 The
Commission further noted that problems of resource depletion and
environmental stress arise from disparities in economic and political power; the
economically and politically marginalised are often also the ones excluded from
environmental decisions and most adversely affected by environmental
degradation.6 Insofar as local natural resources were concerned, their
management should be decentralised, and local democracy strengthened.
Public participation and citizen initiatives in environmental decision-making
provided the necessary community knowledge and support for enforcing the
common interest. Without public participation, individuals are isolated and
unwilling to assume that other individuals will behave in a socially responsible
fashion. As a result, they would choose to pursue narrow self-interest.7 When
individuals interacted to collectively make public decisions, they received mutual
assurance and encouragement to look beyond their own interests and support
4
McAuslan, P., Ideologies of Planning Law, supra, p. 5. McAuslan’s concern with public
participation appeared to be more about its contribution to legitimising planning decisions rather
than improving outcomes. This distinction need not concern us here, as the point I’m making is
simply that the ideology of public participation had existed even before the emergence of the
concept of sustainable development.
5
6
Ibid., p. 46.
7
Ibid., p. 47.
88
decisions based on the common good. On a larger scale, public participation in
the form of public inquiries and hearings on the development and environment
impacts of large-scale projects also helped in drawing attention to different points
of view.8 Public participation in environmental decision-making therefore served
two important functions in the transition to sustainable development. It
neutralised, or at least reduced the imbalance in economic and political power in
accessing natural resources; and it contributed different perspectives to
decision-making.
The Rio Declaration9 and Agenda 2110 echo this view. While the WCED had
only dealt with the issue of public participation briefly in Our Common Future,
Principle 10 of the Rio Declaration raised the importance of public participation
further:
Environmental issues are best handled with the participation of all concerned citizens, at
the relevant level...
The principle also fleshes out the components of public participation: citizens are
to be given access to information concerning the environment, the opportunity to
participate in decision-making processes, and effective access to judicial and
administrative proceedings including redress and remedy.11
The Declaration does not provide any reason for the importance of public
participation in environmental decision-making; it is left to Agenda 21 to expound
on the importance of broad public participation in decision-making as a
prerequisite for achieving sustainable development. The importance of public
participation in environmental decision-making is underscored by the fact that of
the four sections in Agenda 21, a whole section 3 of Agenda 21 has been
devoted to public participation.12 Essentially, the participation of the major social
8
Ibid., pp. 63-4.
9
Supra.
10
Supra.
11
Principle 10.
12
Other chapters in the Agenda, namely, chapters 3, 10, 14, 36, and 37, also dealt with the role
of the public in environmental decision-making, although not exclusively.
89
groups13 improves the quality of environmental decision-making because it
draws on the diverse perspectives and expertise of these groups. Public
participation is also essential for mobilising the support of these groups for the
implementation of programmes.14
More recently, the contribution of public participation in environmental decision-

making to the substantive quality of decisions was given a significant boost with
the entry into force of the Aarhus Convention.15 The Convention stresses that
public participation in environmental decision-making contributes to “the
protection of the right of every person of present and future generations to live in
an environment adequate to his or her health and well-being”.16 It will be the first
international instrument to bind contracting States to a legal duty to provide
public participation in environmental decision-making in specified circumstances.
Building on Principle 10 of the Rio Declaration, it focuses on the three
requirements of access to environmental information; public participation in
decision-making; and access to justice. Binding obligations are imposed on
contracting States to include the public in the types of decisions for which
environmental impact assessments will usually be required. In respect of
environmental plans and programmes; and of policies and executive regulations
however, the Convention’s provisions for public participation are more
exhortatory.
There is no doubt that public participation in environmental decision-making is

crucial to the achievement of sustainable development, and Agenda 21 provides
clear reasons why this is so. Aside from its contribution to the effective
implementation of environmental decisions, the value of broad-based public
13
Supra, Section III. These groups are women; youth and children; indigenous people; non-
governmental organisations; local authorities; workers and trade unions; business and industry;
the scientific and technological community; and farmers.
14
See generally, para. 23.1, supra. See also paras. 24.1 (women); 25.2 (youth); 27.3 (NGOs);
28.1 (local authorities); 29.1 (workers and trade unions); 30.1 (business and industry); 31.1
(scientific and technological community); and 32.4 (farmers).
15
The Convention has entered into force, but has not yet been ratified by the EU or the UK, both
signatories to it (See website of the Convention Secretariat,
http://www.unece.org/env/pp/ctreaty.htm; online as at 16 May 2002).
16
Article 1.
90
participation is in the breadth of perspectives that such participation is able to
offer. In particular, as I explain below, these diverse perspectives help ensure
that environmental decisions are more likely to be based on impartial ethical and
evidentiary judgements that promote the common interest, and on reliable
knowledge.
The Exercise of Ethical Judgements
Sustainable development is concerned with meeting human needs and

aspirations, with overriding priority given to the meeting of basic needs.
Distinguishing between basic needs and aspirational needs is not a
straightforward. Certainly, physiological needs that are clearly necessary for
survival qualify as basic needs, so technical inquiry will be necessary. What
constitutes basic needs will also have to take account of what is clearly
technologically and ecologically viable, and technical input will also be highly
valuable in these matters. While technical contributions are not unimportant, the
distinction between basic needs and aspirations, and the choice of means for
meeting needs, is fundamentally a question of normative judgement based on
our ethical value judgements. What does it mean to be human? What should
count as essential for well-being? Where competing needs of aspirations have
the same level of ethical priority, there will also be a need to strike some balance
between meeting such needs or aspirations. Furthermore, where various means
exist for meeting a particular need, normative judgement will be required in
choosing between the different means, taking into account the impact of
alternative means on other present needs and on the ability of future generations
to access resources to meet their needs.
The Royal Commission on Environmental Pollution17 described values as
beliefs, either individual or social, about what is important in life, and thus about the ends
or objectives which should govern and shape public policies. Once formed, such beliefs
may be durable. It is also characteristic that they may be both formed and modified as a
result of information and reflection. Environmental and social values, in particular, are
17
Hereinafter “RCEP”.
91
not necessarily preformed or fixed but, for many people, emerge out of debate,
discussion and challenge, as they encounter new facts, insights and judgements
18
contributed by others.
According to Perhac, values can inform environmental decisions in three ways;

as ethical judgements, as expressions of our non-moral preferences, and as
evidentiary judgements.19 Ethical judgements reflect our public values about the
common good of the community to which we belong, as opposed to our non-
moral values. The identification of basic needs is partially an ethical judgement
of what should count as an essential requirement for survival and well-being -
the minimum quality of life that we could not unjustly withhold deprive from other
humans whom we recognise as having the same intrinsic worth as we do.
Theoretically, a person could make ethical judgements to justly distinguish

between basic needs and aspirations by using monological and hypothetical
reasoning; as mentioned in the previous chapter, there are a number of
formulations that can help to ensure that these ethical judgements are impartial.
In reality however, we do not always possess the diversity of perspectives and
knowledge needed to be aware of and evaluate impartially the competing needs
at stake in an environmental decision. Furthermore, as long as we are only
required to hypothesise in our minds what similarly impartially-motivated people
might or might not reasonably accept, or to satisfy ourselves that our ethical
judgements can be justified on grounds that others cannot possibly reject, there
will always be a greater possibility that our judgement may be clouded or tainted
by our personal values or interests and make biased judgements.
A less presumptuous and more contingent method for arriving at impartial ethical
judgements would be to have impartially motivated individuals who are
potentially affected by or interested in a proposed environmental decision to
actually reach consensus on the appropriate ethical judgement by articulating
their preliminary ethical judgements, and systematically testing and publicly
18
Royal Commission on Environmental Pollution, Twenty-First Report: Setting Environmental
Standards (Cm 4053) (London: HMSO, 1998), para. 7.3.
19
Perhac, R. M. Jr., “Comparative Risk Assessment: Where Does the Public Fit In?” (1998)
Science, Technology, and Human Values 23(2): 221, 230-5.
92
justifying these judgements to each other. Such a method provides greater
assurance that personal or institutional bias will be counteracted or at least
reduced.
Although discursive dialogue does not guarantee the exercise of impartial ethical
judgements, it is inherently more likely than isolated monological reasoning to
encourage this. Jacobs suggested three reasons why this might be so.20 Firstly,
arguments would need to be put in terms of the common good in order to be
persuasive or justified in terms of universal principles. Secondly, participants
would be exposed to a wider range of perspectives than is possible with self-
reflection, thereby facilitating the adoption of a less personal perspective.
Thirdly, a sense of community amongst participants would be created through
human contact under conditions of equality and respect, thereby encouraging
sympathy and concern for others, mutual trust and the recognition of common
interests.
Other proponents for greater public participation in public decision-making have

expressed similar views about the moralising effects of public participation. Mill,
for example, described participation in public functions as the “school of public
spirit”, because a private citizen is made to feel himself one of the public and to
balance interests impartially and apply principles and maxims directed towards
the general good.21 Barber had also argued that communities grow in a
participatory democracy, as private individuals become free citizens.22 For
Cohen, regularly subjecting a person to a process of “public reasoning” – where
participants tested and justified their ethical judgements using generalised
principles that other participants cannot reasonably reject - was likely to improve
his moral character as it led him to a better insight into his own needs and a
greater awareness of his subjectivity.23
20
Jacobs, M., “Environmental Valuation, Deliberative Democracy and Public Decision-Making
Institutions”, in Foster, J., (ed.), Valuing Nature?: Economics, Ethics and Environment (London:
Routledge, 1997), p. 211, at 220.
21
Mill, J. S., Considerations on Representative Government (Gateway edition) (1861: Chicago:
Henry Regnery, 1962), pp. 72-3.
22
Barber, B. R., Strong Democracy: Participatory Democracy for a New Age (Berkeley:
University of California Press, 1984), pp. 151-2.
23
Cohen, J., “Democracy and Liberty”, in Elster, J., (ed.), Deliberative Democracy (Cambridge:
93
In order for public discourse to effectively facilitate the impartial exercise of
ethical judgement, it is essential that participants test and justify their arguments
under a wide range of perspectives, so that the judgement is truly justified in
terms of generalizable principles. Dialogue must also be genuine in the sense
that they must take place freely between individuals seeking consensus by
appeal to reason rather than resort to authority or force.
Miller identified an additional benefit of ethical judgement through public

deliberation – ethical judgements based on false empirical beliefs would be more
open to change through new knowledge acquired from others in the course of
deliberation.24 As the RCEP pointed out, values are not necessarily preformed
or fixed; they emerge out of dialogue, and transform the pre-existing values of
individual participants as they encounter new facts, insights and judgements
contributed by other participants.
The conditions for effective public discourse were also identified in Agenda 21.
The Agenda encourages broad-based participation in environmental decision-
making, particularly from the major social groups whose communities where they
live or work are potentially affected.25 Furthermore, participants must be able to
give their views independently,26 and this can only happen when they are not
cowed by threats or pressure from other participants, intimidated by jargon used
in discourse, or compelled by economic necessity into a consensus.
Independence also requires some measure of equality. Participants must have

and be recognised to have equal standing to make normative claims and to
challenge the normative claims of other participants on generalized grounds that
others cannot reasonably reject. Their opportunity to contribute to ethical
judgement should not be constrained by their relative political and economic
power. As such, special provision may have to be made to assist participants
Cambridge University Press, 1998), p. 185.

24
Miller, D., “Deliberative Democracy and Social Choice”, in Held, D., (ed.), Prospects for
Democracy: North, South, East, West (Cambridge: Polity Press, 1993), p. 74, at 81-2.
25
Agenda 21, supra, paras. 23.3.
26
Ibid., para. 27.1.
94
who, although in a formally equal participation forum, may actually have a
diminished standing in the deliberation process. Inter alia, participants would
need to have comparable access to relevant information and knowledge and the
resources to present their arguments. Financial assistance could for example,
be given to enable “weaker” participants to hire their own consultants or carry out
their own research on relevant issues. While such assistance may not entirely
eliminate resource-inequality, it can make a significant difference in mitigating
the inequality. To the extent that conditions of equality do not hold, the
consensus on values that emerges may be manipulated by sheer power rather
than a product of shared understanding. As noted by Arnstein,
participation without redistribution of power is an empty process for the powerless. It

allows the power-holders to claim that all sides were considered, but makes it possible
27
for only some of those sides to benefit. It maintains the status quo.
The Social Construction of Knowledge
Impartial ethical judgement in environmental decision-making is not enough to

achieve sustainable development; environmental decision-making must also be
based on reliable knowledge. Beyond identifying the range of needs that ought
to be given priority, consideration must be given to the various ways in which
these needs can possibly be met while keeping within ecological limits as far as
possible. This calls for knowledge about the impact of proposed developmental
activities on human needs and the environment.28 Often, the ecological impact
of proposed developmental activities is highly complex; many variables interact
within an ecosystem and between ecosystems in ways that we have yet to
fathom. Nature exists in a state of constant but irregular flux. While we cannot
prescribe precisely the environmental conditions are most suited to meet human
27
Arnstein, S. R., “A Ladder of Citizen Participation” (1969) Journal of the American Institute of
Planners 35: 216, 216.
28
Although I deal with values and knowledge separately for the purpose of exposition, it should
not be forgotten that they are intimately connected. Our knowledge and perceptions shape our
values. At the same time, what we think we know or believe to be true is coloured in part by the
values we hold. The articulation of values and construction of knowledge therefore cannot take
place independently from each other.
95
needs, we can be reasonably certain that the continued survival and flourishing
of humanity and many other organisms will be seriously jeopardised outside a
very limited range of environmental conditions. The same is true of humans and
social systems. Humans are complex beings; unlike other animals, their
behaviour is influenced in varying degrees by a mix of impulse/instinct, self-
reflection, and social interaction. Just as our knowledge of the ecosystems is
limited, we also only have limited knowledge about the way human societies
work, and cannot predict with certainty how proposed developmental action will
affect society. To compound the complexity, ecosystems and human systems
also often interact with each other so that changes in ecosystems affect social
systems and vice versa. Because of this complexity, predicting the impacts of
proposed developmental activities is not an easy task; unintended
consequences often crop up in places and at times we least expect.
Furthermore, even when significant changes to people or the environment are
detected, these changes are not always traceable to any single cause or
combination of causes because different permutations of human activities under
different environmental conditions contribute to additive, synergistic or
counteractive effects on people and the environment. In any case, because
natural and human systems are in a constant state of flux, our knowledge of
these systems can only be tentative and must be continuously revised to keep
up with changes. The problem does not only lie in the uncertainty of our
knowledge, but more insidiously, in our ignorance. Ignorance exists when we do
not know what the indeterminate elements in our knowledge are, and do not
know where the limits of our knowledge lie. Ignorance is a more insidious
problem than uncertainty because when we are ignorant, we are not only unsure
about the answers, but do not even ask the right questions.29 For example,
there could not have been any contemplation of the risk of catching Creutzfeldt-
Jacob disease (CJD), the human form of transmissible spongiform
encephalopathy (TSE), posed by allowing the rendered remains of sheep, cattle
and other animals to be routinely incorporated into animal feed. The first cases
of Bovine Spongiform Encephalopathy (BSE) were only officially acknowledged
in 1987,30 even though the disease had already started to infect cattle in the
29
Wynne, B., and Mayer, S., “How Science Fails the Environment” (1993) New Scientist 1876:
33.
30
BSE Inquiry, Report of the BSE Inquiry (London: HMSO, 2000), Vol. 3, para. 1.7.
96
South West of England as early as in the 1970s but simply remained
undiagnosed and unreported,31 or misdiagnosed and simply ascribed to other
known disorders such as hypomagnesaemia because the existence of BSE was
not known at that time.32 The first documented official acknowledgement of the
possibility that BSE might transmit to humans only took place in 1986,33 and the
first report of an association of a case of CJD with a farm, after the emergence of
BSE in 1986, took place in 1989.34 As long as the possibility of catching CJD
remained unknown, the question of the likelihood of such a threat could not
possibly arise.
Contribution to Scientific Knowledge
Knowledge can be broadly categorised as scientific/technical knowledge and lay

knowledge. Ideally, what sets scientific knowledge apart from local knowledge is
that the former is based on systematic inquiry or empirical study, while the latter
is more anecdotal and haphazardly transmitted, if at all. Scientific knowledge
often enjoys an elevated status as a source of knowledge due to its reputation as
being the result of rational pursuit by disinterested scientists of the objective truth
about the natural world. By purporting to base their decisions on ‘sound’ science
rather than on other grounds perceived to be less objective, environmental
decision-makers hope to avoid charges of bias or irrationality (as well as
minimise the risk of legal challenge).35
The professed objectivity of scientific knowledge is however often overstated

resulting in the faith in scientific knowledge sometimes being misplaced. There
is no doubt that scientific knowledge is a valuable source of knowledge. Yet, it is
important to bear in mind that despite its noble aspirations, scientific inquiry is
not the perfectly rational procedure for understanding the human and
environmental impacts of human activity we sometimes make it out to be. As
31
BSE Inquiry, Report of the BSE Inquiry (London: HMSO, 2000), Vol. 3, paras. 1.41 and 1.46.
32
Ibid., Vol. 2, para. 7.3(ii).
33
Ibid., Vol. 3, paras. 5.4-5.7.
34
Ibid., Vol. 8, para. 5.3.
35
Porter, T. M., Trust in Numbers: The Pursuit of Objectivity in Science and Public Life
(Princeton, New Jersey: Princeton University Press, 1995), p. 8.
97
observed by Beck, the methodical scepticism of the sciences has hitherto been
limited to the objects of science, with the foundations of scientific knowledge
remaining exempt from scepticism.36 By its own internal logic, claims of
scientific rationality to superior knowledge must be treated with scepticism since
they remain scientifically unproven.
Like other types of knowledge, scientific knowledge is bounded by ignorance.

As Wynne and Mayer pointed out, no scientific method would ever be able to ask
all the right questions about what we do to the environment, let alone find the
answers”.37 The question of what environmental impacts will result from a
proposed developmental activity therefore cannot be answered perfectly even
with the best science. Scientific knowledge also suffers from problems of
uncertainty; it often has to rely on less than accurate or complete empirical data,
arbitrary extrapolations, and debatable interpretations of empirical data.38 Thus,
even when we suspect that a particular activity may be contributing to certain
environmental changes, we are not often able to incontrovertibly confirm or
refute the suspicion; the available evidence does not always point firmly to one
conclusion. The eventual emergence of a scientific consensus, if and when it
happens, is often on the basis of inconclusive evidence and compromise within
the scientific establishment rather than strictly on the basis of incontrovertible
evidence backed by rational analysis.
These limitations of scientific knowledge have been acknowledged by the RCEP:
We believe it is essential that environmental policies should have a scientific basis, and
that there is an adequate scientific basis for most such policies as present. There is,
however, a widely held view, even an expectation, that scientists can provide the answer
to whatever issues are under consideration. Science is not a matter of certainties but of
36
Beck, U., Risk Society: Towards a New Modernity, Ritter, M., (trans.), (London: Sage
Publications, 1992), p. 163.
37
Wynne, B., and Mayer, S., supra, p. 35.
38
This point is illustrated by the RCEP’s case study on the scientific assessment of the human
health toxicity and ecotoxicity of chemical substances in the course of setting environmental
standards in Chapter 2 of its report, supra. See also McEldowney, J. F., and McEldowney, S.,
Environmental Law and Regulation (London: Blackstone Press, 2001), pp. 55-64 for examples
on the limitations of scientific understanding.
98
hypotheses and experiments. It advances by examining alternative explanations for
phenomena, and by abandoning superseded views. It has provided very powerful tools
for gaining understanding of complex environmental processes and systems. At the
same time there are many cases in which damage has been caused to health or the
natural environment because of gaps in understanding. Such incompleteness is inherent
in the nature of science, especially environmental science, which deals with ‘the world
outside the laboratory”. In a scientific assessment of an environmental issue there are
bound to be limitations and uncertainties associated with the data at each stage.
39
Standard setting and other decision-making procedures should recognise that.
Aside from the inherent limitations of the scientific method, the fact that science
is ultimately a human endeavour introduces a further limit to the objectivity of
scientific knowledge. Scientists, the high priests of scientific knowledge, are
never perfectly disinterested in their own scientific inquiry and their review of the
work of their peers. Polanyi’s Personal Knowledge: Towards a Post Critical
Philosophy,40 and Kuhn’s The Structure of Scientific Revolutions41 have
effectively dispelled the myth of scientific inquiry as a value-free activity, and
scientific knowledge as solely the product of logic and objective observation and
experimentation. Indeed, Polanyi even considered complete objectivity in
scientific knowledge a false ideal because knowledge was necessarily partly
subjective.42 For him, the acquisition of knowledge was an active art requiring
the personal participation of the acquirer through the exercise of tacit skills that
could only be imparted from master to apprentice rather than transmitted by
prescription.43 Kuhn’s description of the development of scientific knowledge is
equally illuminating. In the early stages of any science, scientific knowledge is
anything but coherent. Before the formation of scientific paradigms, data
gathering is often random, and different scientists describe and interpret the
same range of phenomena differently, according to a body of beliefs that is
extrinsic to the phenomena observed.44 As a science matures, the scientific
39
Ibid., para. 2.66.
40
Polyani, M., Personal Knowledge: Towards a Post-Critical Philosophy (London: Routledge &
Kegan Paul, 1958).
41 nd
Kuhn, T. S., The Structure of Scientific Revolutions (2 edition) (Chicago: University of
Chicago Press, 1970).
42
Polanyi, M., supra, p. 18.
43
Ibid., p. 53.
44
Kuhn, T., supra, pp. 15-7.
99
consensus begins to converge on a particular paradigm, and it becomes
increasingly rigid and resistant to change.45 The paradigm begins to shape
scientific research, and scientists seek to explain observed data within its
theoretical framework, thereby overlooking alternative interpretations of such
data.46 As increasingly serious anomalies arise within the prevailing paradigm,
some will remain loyal to the paradigm on which they have acquired their
professional reputation and either ignore the anomalies or try to defend it by
devising articulations and ad hoc modifications to eliminate the conflict.47 Other
scientists, particularly the younger or newer in the field, with little commitment to
the prevailing paradigm, will begin to search for and establish competing
imperfect explanations.48 As new theories emerge to challenge a paradigm, the
outcome of the challenge becomes not exclusively a matter of logic and
experiment, but is influenced by a whole host of factors including judgements
about which set of observed ‘facts’ it is more significant for a paradigm to be able
to explain, the understanding of the competing vocabulary and apparatus,
worldviews, religion, personality and personal idiosyncrasies, and even the
nationality or reputation of the innovator and/or his teachers.49
There is no objective standard as to what constitutes sound science any more

than there is any objective standard as to what constitutes scientific proof.50
Ultimately, whether actual scientific practice has met the requisite standard of
proof in a particular context is a matter of evidentiary judgement under the
influence of the professional and personal values of members of the scientific
45
Ibid., p. 64.
46
Ibid., p. 76.
47
Ibid., p. 78.
48
Ibid., pp. 90-1.
49
Kuhn T. S., supra, pp. 148-53.
50
In other words, what constitutes sound science or scientific proof is established through the
inter-subjective judgements of scientists rather than derived using irrefutable scientific methods.
Consider, for example, how starkly different sets of scientific criteria for inferring carcinogenicity
applied by scientists from the US Environmental Protection Agency and the UK Pesticides Safety
Precautions Scheme led to opposite conclusions in the US and in the UK respectively about the
toxicity of two chemical pesticides on the same evidence. See Gillespie, B., Eva, D., and
Johnston, R., “Carcinogenic risk assessment in the USA and UK: The case of Aldrin/Dieldrin”, in
Barnes, B., and Edge, D., (eds.), Science in Context: Readings in Sociology of Science (Milton
Keynes: Open University Press, 1982), p. 303.
100
community. Barke and Jenkins-Smith, for example, found that life scientists
considered nuclear power and radioactive wastes more risky than other
scientists did. Women and younger scientists were also found to be more risk
averse than their peers when it came to endorsing dose-response models for
policy purposes. 51
Apart from being influenced in their professional judgements by the dogmas of

their scientific training or social characteristics, scientists are, to varying degrees,
also vulnerable to other forms of external influence in the course of performing
their work or peer reviewing the work of others. For example, their reliance on
research funds or need for access to confidential or proprietary data to conduct
research may subject them to subtle or even explicit pressure from those who
control access to such funding or data over the way the research is framed,
conducted, or interpreted. Scientists are also consciously and subconsciously
vulnerable to personal52, career,53 and institutional54 interests and values in
51
Barke, R. P., Jenkins-Smith, H. C., and Slovic, P., “Risk Perceptions of Men and Women
Scientists”, in Gerrard, S., Turner, R. K., and Bateman, I. J., (eds.), Environmental Risk Planning
and Management (Cheltenham: Edward Elgar, 2001), p. 291.
52
Such as friendship, commitment to a social cause, loyalty to colleagues, financial reward,
peerage.
53
Such as employment, promotion, ability to obtain research funds, prizes and awards,
acceptance and respect of peers, appointment to prestigious committees.
54
Institutions are set up with mandates or mission orientations, and have allotted budgets.
These considerations influence the focus of research. For example, it was noted that the
scientific knowledge on the link between and BSE and Variant Creutzfeldt-Jakob Disease (vCJD)
would have developed differently if it had been investigated by the Department of Health instead
of by the then Ministry of Agriculture, Fisheries and Food (“MAFF”). According to the Report of
the BSE Inquiry, supra, Vol. 2, paras. 7.56-7.62, had the bulk of the BSE research come within
the province of the Department of Health instead of the MAFF, the research would have been
undertaken by external scientists subject to open competition and external peer review instead of
by in-house scientists already subject to research budget cuts. When faced with evidence that a
cat had been infected with Feline Spongiform Encephalopathy (FSE), the Chief Veterinary Officer
continued to deny any link between BSE and CJD because he considered that there was no
evidence that the cat had consumed contaminated beef (Vol. 1, para. 363). The Report
concluded (Vol. 1, para. 1252) that it was legitimate for the Chief Veterinary Officer to be
concerned at the time of the BSE crisis that the livestock industry not be damaged by public
reaction to a possible link between BSE and vCJD for which, in his opinion, there was no
scientific evidence. In contrast, the Chief Medical Officer’s reaction was one of deep concern
101
generating and framing hypotheses and research questions, constructing and
conducting experiments, defining what constitutes adequate evidence and what
does not, and organising, interpreting, and drawing inferences from the evidence
available.55
Given that scientific knowledge is not the objective mirror of reality it is

sometimes believed to be, there is no a priori reason to automatically concede
superiority to scientific knowledge, or to blindly defer to the authority of scientists.
Where a lay member of the public does not have the ability or opportunity to
subject the ‘official’ scientific evidence or interpretation of data to personal or
trustworthy third party scrutiny, it is neither unreasonable nor irrational for him to
remain sceptical of endorsements by the scientific establishment.56
As long as scientific authority is automatically accorded deference in public

decision-making, it is a valuable tool for those with the means to access and
wield it, either because they have privileged access to the relevant data, or
because they have the political or financial means to commission preferred
areas of research or modes of study that support their claim, or to select or
influence the selection of sympathetic scientists to positions of scientific
because it highlighted a potential link between FSE and BSE, and he began to suspect a link
between BSE and vCJD (Vol. 1, para. 658).
55
A case in point is the way scientists and regulators evaluated reported cases of death related
to a new drug, benoxaprofen, in forming an opinion about the hepatorenal (liver and kidney)
toxicity of the drug, described in Abraham, J., “Distributing the Benefit of the Doubt: Scientists,
Regulators, and Drug Safety” (1994) Science, Technology, and Human Values 19(4): 493.
56
The scepticism is not symmetrical; surveys reveal that scientists working from the government
or industry consistently evoke a lower level of public trust than scientists working in universities
and non-governmental organisations. See for example, House of Lords Select Committee on
Science and Technology, Third Report: Science and Society, HL Paper 38 (London: HMSO,
2000) (hereinafter “Science and Society”), Appendix 6. The Committee suggested that that this
was due to public perception of government and industry scientists rather than a reflection of the
scientists themselves, partly arising from public ignorance, and partly from the failure of
institutional science at the frontier of knowledge to “admit publicly its own uncertainties and to
provide accordingly”. See HL Select Committee, Science and Society, supra, paras. 2.36, 2.56
and 2.57. The RCEP on the other hand, attributed the low-level of trust to an erosion of trust in
those who purport to regulate in the public interest. See Royal Commission on Environmental
Pollution, The Twenty-first Report: Setting Environmental Standards, supra, para. 8.23.
102
authority, e.g., membership of scientific advisory committees.57 As spelt out
bluntly by Wynne and Mayer,
The current dominant forms of science in Britain … conceal substantial political

influence, often to the ultimate detriment of the environment. If those controlling budgets
have vested interests, the balance of evidence may be heavily biased against
environmental protection. For example, in Britain today, it is difficult to obtain
independent scientific opinion on nuclear issues. Many nominally independent scientists
and institutions perform research funded by the nuclear industry, and this tends to
58
narrow their view of uncertainty and ignorance.
The RCEP also acknowledged this problem, albeit in more restrained terms:
Another consideration that becomes important in a situation of high uncertainty is the

overall impartiality of the procedures used for assessment. Judgements can be swayed,
perhaps imperceptibly, by one or another kind of vested interest. One much remarked
upon, and criticised, feature of regulatory science in the past has been the extent to
which experts in an industry, the contract laboratories carrying out the standard tests for
it and the regulatory body itself have functioned in some instances as a largely closed
59
community.
It recommended greater transparency in the presentation of scientific

information. These presentations must make explicit the underlying scientific
basis, uncertainties in the evidence and the rationale for any methods used to
cope with variability, and the assumptions implicit in their use.
But transparency alone may not be enough; openness is also required. This
means that there is a need to open up the construction of knowledge, including
scientific knowledge, to more diverse sources. In Our Common Future, the
WCED advocated free access to relevant information and the availability of
alternative sources of technical expertise to provide an informed basis for public
57
The built-in safeguard of peer review mitigates but may not go far enough because peers are
also subject to influence one way or the other by paradigmatic and other personal and
institutional non-scientific values.
58
Wynne, B., and Mayer, S., supra, p. 35.
59
Royal Commission on Environmental Pollution, The Twenty-first Report: Setting
Environmental Standards, supra, para. 2.79.
103
discussion.60 It was also pointed out in Agenda 21 that opening up the
construction of scientific knowledge to include women scientists,61 and
indigenous communities,62 experts from non-governmental organisations,63
businesses and industry,64 and scientists from developing countries65 allowed
these groups to contribute and scrutinise scientific knowledge beyond a closed
scientific community.
Even opening up scientific knowledge to the wider scientific community may not
be enough, though. The RCEP had suggested that while the public could
contribute to the articulation of values, scientific knowledge was best left to the
exclusive domain of scientists. It recommended a clear separation between
policy and analysis (predominantly scientific analysis) and warned against
undertaking both tasks simultaneously.66 Importantly, scientists could thereby
be prevented from surreptitiously exercising ethical judgements and non-moral
preferences qua scientists, and scientific analysis could also be protected from
political influence.
Such a recommendation is flawed because it assumes that the articulation of

values and the establishment of knowledge are separable and can proceed
independently of each other when in fact the two are inseparable. Scientists,
despite their special training, cannot remain isolated from society; it is vital that
the direction and conduct of their scientific research remain integrated with and
be accountable to values of society. Thus, Agenda 21 recommended that lay
members of the public contribute to scientific knowledge by “communicating their
sentiments to the scientific and technological community concerning how
science and technology might be better managed to affect their lives in a
beneficial way”.67 According to the Agenda, the participation of the scientific
60
61
Agenda 21, supra, para. 24.3.
62
Ibid., para. 26.1.
63
Ibid., para. 27.3.
64
Ibid., para. 30.23.
65
Ibid., para. 35.3.
66
Royal Commission on Environmental Pollution, The Twenty-first Report: Setting Environmental
Standards, supra, paras. 8.51 and 8.52.
67
Agenda 21, supra, para. 31.1. Emphasis mine.
104
community in environmental decision-making could, inter alia, improve the
exchange of knowledge and concerns between the scientific community and the
general public and enable suitable policies and programmes to be better
formulated”.68 What was required was a dialogue between scientists and the lay
public and not simply a one-way communication from scientists to the public to
educate the latter about science. Scientists not only needed to look inward in
developing ethical principles and codes of practice, they also needed, through
continuous dialogue, to share a common value framework with society as a
whole.69 As Irwin explained, just as it was important for the public to understand
science, it was also important for scientists to understand society. Within the
framework of sustainable development, scientists needed to pursue scientific
knowledge in ways that help to achieve sustainable development as much as
society needed to organise its activities including environmental decision-making
70
on a more rational basis. Rather than keep their distance from society,
scientists ought to integrate and work with it.
More generally, the government’s Chief Scientific Advisor has also

acknowledged the need for greater openness with its scientific advice and
recommended the consultation of a wide range of expert advice both within and
outside government, and within and outside the UK, in the use and presentation
of scientific advice in policymaking.71 This recommendation was repeated in
Guidelines 2000 issued by the Office of Science and Technology. It advised that
government departments
should draw on a sufficiently wide range of the best expert sources, both within and
outside Government. These might include not only eminent individuals, learned societies,
advisory committees, or consultants, but also professional bodies, public sector research
68
Ibid., para. 31.3(b).
69
Ibid., paras. 31.9 and 39.10(b).
70
Irwin, A., Citizen Science: a Study of People, Expertise and Sustainable Development
(London: Routledge, 1995), p. 5.
71
Office of Science and Technology, The Use of Scientific Advice in Policy Making (May 1997),
para. 6. As at 16 April 2002, online at http://www.dti.gov.uk/ost/ostbusiness/policy.htm.
Superseded by Office of Science and Technology, Guidelines 2000: Scientific Advice and Policy
M a k i n g (July 2000). As at 16 April 2002, online at
http://www.dti.gov.uk/ost/aboutost/guidelines.htm.
105
establishments, lay members of advisory groups, consumer groups and other
stakeholder bodies. As all experts will come to issues with views shaped to some extent
by their own interests and experience, departments should also consider how to avoid
unconscious bias, by ensuring that there is a good balance in terms of the type of
institutions and organisations from which the experts are sought. Experts from other
disciplines, not necessarily scientific, should also be invited to contribute, to ensure that
the evidence is subjected to a sufficiently questioning review from a wide-ranging set of
72
viewpoints.
Contribution to Local and Contextual Knowledge
An open and transparent science would still only provide partial knowledge for
environmental decision-making. Knowledge can also come from other sources;
not all knowledge must be scientific in the sense that it is obtained or verifiable
using scientific processes. Even if scientists can claim mastery over abstract,
general information, their knowledge may not be as relevant as the localised lay
knowledge of the indigenous people73 or local communities74 when it comes to
location or context specific decision-making. The RCEP illustrated this point with
their case study of how the peaty, acidic soils of Cumbria did not immobilise the
radioactive caesium from the Chernobyl nuclear accident as expected. As a
result, the caesium found its way into the grass through root uptake and into the
bodies of sheep through grass consumption. Without awareness of local
conditions, scientists basing their model on the clay mineral soils of southern
England or on general statistical data would have underestimated the exposure
of lambs in Cumbria to radiation.75
Local knowledge is often anecdotal, but that should not be a reason for
invalidating it. It is not a case of one form of knowledge being superior to the
other, but of knowledge taking different forms and coming from different sources.
Scientific and local knowledge complement one another to improve predictions
about the impacts of proposed activities in a specific context. Without such local
72
Office of Science and Technology, Guidelines 2000: Scientific Advice and Policy Making, ibid.,
para. 12.
73
Agenda 21, supra, para. 26.1.
74
Ibid., para. 28.1.
75
Standards, supra, para. 2.25.
106
input, scientific predictions based on abstract or ‘typical’ conditions are academic
at best and may be inappropriate for environmental decision-making in a specific
context.
Local knowledge is no less perspective-driven than scientific knowledge, and

probably even more so. Just as the public is not one homogenous group,
neither is local knowledge uniform. Within a community, men and women not
only have different values, they know different things and know in different
ways.76 The same is true of the diverse local knowledge of other social
groups.77 Being able to tap on this diversity of knowledge enhances the quality
of decision-making since the different perspectives complement the one-size-fits-
all scientific or technological fixes by providing insights towards a more complete
understanding of a complex problem and its possible solutions.
In summary, knowledge from a narrow point of reference is often inadequate in

the face of complex problems or circumstances. In the same way that peer
review within the scientific community contributes to the advancement of
scientific knowledge, broad-based public participation, in which participants are
permitted to review from a wide range of reference points, each other’s factual
claims, contributes to the construction of reliable inter-subjective knowledge for
environmental decision-making.
Contribution to Evidentiary Judgements
It is inevitable that despite the best intentions and efforts, there will be gaps in
the available evidence available; all environmental decisions must ultimately rely
on imperfect knowledge. As Wynne pointed out, uncertainty (and ignorance) as
such is not a problem per se; humans had been making decisions in the face of
uncertainty and ignorance throughout their existence. Ultimately, what was
76
Agenda 21, supra, para. 24.8 specifically refers to the local knowledge of women. According
to Curtin, women’s knowledge “consists more in ‘thoughtful ways of doing’ than in ‘ways of
thinking about’”. See Curtin, D., “Women’s Knowledge as Expert Knowledge”, in Warren, K. J.,
Ecofeminism: Women, Culture, Nature (Bloomington: Indiana University Press, 1997), p. 82, at
91.
77
Agenda 21, ibid., paras. 25.2, 26.1, 30.5.
107
required to bridge the gap between the imperfect knowledge on the one hand,
and the decision on the other, was an exercise of evidentiary judgement. The
appropriate environmental decision to be made in the face of often contradictory,
uncertain and incomplete evidence required a judgement about the burden of
proof and the standard of proof, and the significance to be attributed to each
individual piece of evidence. Depending on what was at stake, we could
embrace, amplify, suppress or ignore the uncertainty in order to further our roles
and concerns.78
Page observed that scientific inquiry was currently systematically biased in

favour of limiting “false positives”, to the neglect of limiting “false negatives”.79
The stringent approach to establishing scientific fact required that in the face of
less than absolute certainty, scientific evidentiary judgement be suspended
pending a fresh inquiry or the acquisition of more and better data.80 Indeed,
scientists like Milne insist that
no scientist can ever do more than attempt to establish causal links by absolutely clear
scientific evidence. When we do anything else – and that includes taking action before
81
such limits are established – we are not behaving as scientists”.
What is not often realised however, is that imposing the burden of proof on those
who seek to introduce new knowledge to contradict the status quo and a
standard of proof of absolute certainty is as much a value-laden approach to
proof as imposing the burden of proof on those who seek to defend the
prevailing scientific theory, or lowering the standard of proof. Whatever the
merits of such an approach for academic science, when it comes to
78
Wynne, B., “Uncertainty – Technical and Social”, in Brooks, H., and Cooper, C. L., (eds.),
Science for Public Policy (Oxford: Pergamon Press, 1987), p. 95, at 95. Adams adds that people
respond differently to the same uncertainty (and ignorance) in information because their
perceptions of danger and reward are influenced by “cultural filters”, i.e., their view of the
vulnerability of nature, and their interpretation of history. See Adams, J., Risk: The Policy
Implications of Risk Compensation and Plural Rationalities (London: UCL Press, 1995), pp. 40-1.
79
Page, T., “A Generic View of Toxic Chemicals and Similar Risks” (1978) Ecology Law
Quarterly 7: 207.
80
Ziman, J. M., Public Knowledge: an Essay Concerning the Social Dimension (Cambridge:
Cambridge University Press, 1968), pp. 14-5.
81
Milne, A., “The Perils of Green Pessimism” (12 June 1993) New Scientist 34, 35.
108
environmental decision-making, it may be necessary to anticipate or assume
environmental harm without waiting for the threat to garner enough evidence to
qualify as scientific fact.82
Beck criticised the inadequacy of “pure” scientific principles of causality, as

stemming from other contexts and perhaps from a different intellectual epoch
thus:
Where pollution exposures can only be understood and measured within international
exchange patterns and the corresponding balances, it is obviously impossible to bring
individual substances into a direct, causal connection with definite illnesses, which may
also be caused or advanced by other factors as well. This is equivalent to the attempt to
calculate the mathematical potential of a computer using just five fingers. Anyone who
insists on strict causality denies the reality of connections nonetheless. Just because the
scientists cannot identify any individual causes for individual damage, the pollutant levels
in the air and in foodstuffs do not decrease, the swelling of the air passages under
exposure to smog does not go down and neither do the mortality rates, which rise
83
significantly with sulfur dioxide levels above 300 micrograms per cubic meter.
One way to understand knowledge is to liken it to a tool as opposed to an

objective fact waiting to be discovered.84 Like the design of a tool, the
acquisition of knowledge is shaped by some intended function or motivating
interest. Its applicability to new functions or when new interests emerge is
therefore an open question. If the scientific standard of proof is not derived from
some incontrovertible scientific method, but is simply a matter of convention
within the relevant scientific community for its own purpose of establishing
82
This is likely to do with the fact that in its purest form, science adopts a falsification approach
as opposed to a verification approach to discovery. The former is really concerned with
identifying and weeding out false hypotheses rather than with proving any particular hypothesis
to be correct. Other limitations to a scientific approach to environmental decision-making include
the compartmentalised approach of science to problem solving when in fact environmental
systems are complex phenomena with many factors operating in complicated multi-faceted
interrelationships; and the emphasis of science on universal principles as opposed to particular
context-specific situations. See Trudgill, S., Barriers to a Better Environment: What Stops Us
Solving Environmental Problems? (London: Belhaven Press, 1990), pp. 55-61.
83
Beck, U., supra, p. 63.
84
Ravetz, J. R., Uncertainty, Ignorance and Policy”, in Brooks, H., and Cooper, C. L., (eds.),
Science for Public Policy (Oxford: Pergamon Press, 1987), p. 77, at 85.
109
knowledge academically, the standard of proof adopted by academic scientists
does not ipso facto have to be the applicable standard of proof for the purpose of
environmental decision-making. Instead, what the appropriate standard of proof
ought to be will, inter alia, necessarily depend on what the knowledge is to be
used for. In the context of environmental decision-making, an appropriate
standard to adopt may be the ‘reasonable man standard’:
The degree of risk to human health does not need to be at statistically significant levels to
require political action. The degree of risk does have to be such that a reasonable person
would avoid it. Consequently, the important political test is not the findings of
epidemiologists on the probability of nonrandomness of an incidence of illness but the
likelihood that a reasonable person, including members of the community of calculation
[epidemiologists], would take up residence with the community at risk and drink from and
85
bathe in water from the Yellow Creek area or buy a house along Love Canal.
Of course, what a “reasonable man” would do in particular circumstances is a

value-laden question that no single person (aside from judges and lawyers) can
claim to know impartially.
Evidentiary judgements consistent with sustainable development observe the

precautionary principle.86 The principle has been described as non-scientific,
and even worse, “bad science” and “antithesis of the scientific attitude and
normal scientific discourse”.87 Indeed, the principle exists precisely to counteract
the systematic neglect of science in limiting false negatives. By advocating a
lower standard of proof than absolute certainty for proof of serious or irreversible
environmental harm, it makes the case for environmental protection in
circumstances of scientific uncertainty easier to establish:
85
Couto, R. A., “Failing Health and New Prescriptions: Community-Based approaches to
Environmental Risk”, in Hill, C. E., (ed.), Current Health Policy Issues and Alternatives: an
Applied Social Science Perspective (Athens: University pf Georgia Press, 1985), p. 53, cited in
Brown, P., “Popular Epidemiology and Toxic Waste Contamination: Lay and Professional Ways
of Knowing” (1992) Journal of Health and Social Behavior 33(3): 267, 274.
86
In contrast, a “presumption principle for liberty” – that the burden of proof of harm or damage is
on those who want to curtail liberty – could be detrimental to sustainable development. See
O’Neil, Ecology, Policy and Politics (London: Routledge, 1993) p. 147.
87
Milne, A., supra, pp. 36-7.
110
Where there are threats of serious or irreversible harm to the environment, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to
88
prevent environmental degradation.
The principle does not prescribe the requisite standard of proof of serious or
irreversible environmental harm for the purpose of taking precautionary action; it
is more of a qualitative principle than a mathematical formula to be applied with
precision.89 The principle has been unfairly criticised for being too “uselessly
vague”,90 but its true utility lies in its prescribing a space for the deliberate
exercise of evidentiary judgement. As pointed by Holder and Elworthy, the
principle provided this space by offering a vocabulary with which to legitimately
express concerns about irreversible and serious threats that the vocabulary of a
scientific discourse lacked.91
Conclusion
The root cause of unsustainable development is the disparity in economic and

political power in environmental decision-making. Any serious attempt to attain
distributive justice in the sharing of access to natural resources must therefore
first address the issue of procedural injustice in environmental decision-making.
If environmental decisions are to realise their full potential for contributing to
sustainable development, they cannot be entrusted to the exclusive monological
ethical and evidentiary judgements of administrators or the political leadership,
particular if they have a vested interest in maintaining the worsening inequitable
distribution of access to natural resources. Instead, impartial ethical and
evidentiary judgements are more likely to emerge from “debate, discussion and
challenge” by the people who are affected or interested in a proposed
environmental decision.92
88
Rio Declaration, supra, Principle 15.
89
House of Commons Select Committee on Science and Technology Fourth Report, HC 257
(London: HMSO, 2001), para. 48.
90
Milne, A., supra, p. 36.
91
Holder, J., and Elworthy, S., “The BSE Crisis: a Study of the Precautionary Principle and the
Politics of Science in Law”, in Reece, H., (ed.), Law and Science (Oxford: Oxford University
Press, 1998), p. 129, at 150.
92
Royal Commission on Environmental Pollution, Twenty-First Report: Setting Environmental
111
There are also serious deficiencies in the way knowledge is established in
complex environmental decision-making in that there is almost a blind faith in the
authority of experts. The fact that expert opinion is as much the product of
subjective judgement as it is of professional judgement means that the quality of
expert knowledge can be enhanced with greater transparency and openness in
its use. In addition, general abstract knowledge must be complemented with
localised contextual knowledge to give a more complete and balanced picture of
the ‘objective’ world. Broad-based discursive public participation can contribute
in both respects by subjecting expert knowledge to scrutiny from a diversity of
perspectives, and providing the much-needed localised and contextual
perspective.
A panacea for all our environmental ills it is not, but discursive public
participation in environmental decision-making may be the best procedural
means of ensuring equitable environmental decisions based on impartial values
and reliable knowledge. To the extent it is present, there can be greater
confidence that the outcome of the decision represents progress towards
sustainable development.
112
PART TWO :: ASSESSING PUBLIC PARTICIPATION IN THE
AUTHORISATION OF RADIOACTIVE WASTE DISPOSAL
In Part One, I concluded that environmental decisions are made with the
anthropocentric objective of contributing to sustainable development, and that at
the core of the concept as articulated by the WCED and in the Rio Declaration
are the principles of intra-generational and intergenerational equity. I also
concluded that discursive public participation in environmental decision-making
contributes to better substantive outcomes by facilitating impartial value
judgements, and inter-subjective social construction of multi-perspective
knowledge on which to base the decision. In this Part, I adopt and modify
criteria proposed by Webler,1 and use them for evaluating the law and
Environment Agency practice relating to public participation in the authorisation
of radioactive waste disposal. By so doing, I hope to highlight deficiencies in the
law and Agency practice in this regard, and propose a direction for reform.
1
Webler, T., supra, p. 35.
113
Chapter 5: Sustainable Development and the Regulation of
Radioactive Waste Disposal in England
I begin this chapter with an examination of the transposition of sustainable

development into domestic environmental law and policy in the UK. I suggest
that while formally endorsing the concept of sustainable development, and
acknowledging the need for greater intra-generational and inter-generational
justice in environmental decision-making, UK environmental policy starts from
the flawed premise that there is no need to distinguish between basic needs and
aspirations, legitimate or otherwise. Thus, all consumer demand is equally
legitimate and rising consumer demand must somehow be accommodated by
increasing the efficiency of economic production and consumption without
degrading the environment in a way that makes further economic growth difficult
or impossible to sustain. Under such a liberal conception of sustainable
development, only the means but not the ends of economic activity needs to be
publicly examined. Understanding how sustainable development is transposed
into UK domestic environmental policy is fundamental to understanding
environmental decision-making by the Environment Agency relating to its
authorisation of radioactive waste disposal, and sets the policy context for the
case studies in Chapters 7 and 8, where I evaluate fairness and competence of
the law and Agency practice relating to public participation in the authorisation of
radioactive waste disposal.
Transposing Sustainable Development into a National Strategy
The Rio Declaration makes it clear that although states are entitled to “exploit
their own resources pursuant to their own environmental and developmental
policies”,1 they have a collective responsibility to pursue sustainable
development as a global solution to a global problem. International coordination
and cooperation is needed to eradicate poverty and decrease the disparity in
standards of living around the world2 while preserving the ability of future
generations to meet their needs.
1
Principle 2.
2
Principle 5.
114
States also have an individual responsibility to contribute to sustainable
development by ensuring that their resources are deployed in a way that
“equitably meets the needs of present and future generations within their
jurisdiction.3 They must also ensure that activities within their jurisdiction or
control do not cause damage to the environment of other states or of areas
outside their jurisdiction.4 Domestically, they have a responsibility to eradicate
poverty within their jurisdiction5 and enact effective environmental legislation and
laws regarding liability and compensation for victims of environmental damage.6
Environmental policies must also include the adoption of operational principles
such as the precautionary approach7 and the polluter pays principle;8 and
instruments such as the environmental impact assessment.9
Importantly, states have a common but differentiated responsibility to contribute

to sustainable development. In the case of a developed country such as the UK,
it has a special responsibility to contribute to global sustainable development in
view of its superior technological and financial resources and because of the
disproportionate pressure it places on the global environment.10
Sustainable Development in the United Kingdom
The present development path of the UK is by all counts unsustainable. In 1999,

the country consumed about 3 times more biomass than its own biological
productive capacity.11 It had an average per capita consumption about 2.8 times
the level of per capita consumption that is sustainable globally.12 Despite the
disproportionate size of the UK’s ecological footprint, there are some 5 million
people or 17% of its population who consider themselves to be living in absolute
3
Principle 3.
4
Principle 2.
5
Principle 5.
6
Principle 13.
7
Principle 15.
8
Principle 16.
9
Principle 17.
10
Principle 7.
11
Data from World Wide Fund for Nature, supra, pp. 29 and 30.
12
Ibid., pp. 4 and 29.
115
poverty, i.e., deprived of basic needs, and about a quarter of the population living
are unable to afford three or more items or activities considered by the majority
of the UK population to be necessities.13 To achieve sustainable development,
the UK would need to do more to eliminate poverty but at the same time reduce
its gross overconsumption of natural resources.
That sustainable development has formally been adopted as the framework for
environmental decision-making in the UK is not in doubt. The concept forms the
cornerstone of European Union environmental law and policy. This invariably
has a strong influence in the formulation of environmental law and policy in the
UK. Independently of its membership in the EU, the UK has also adopted
sustainable development as a national strategy and also provided for it in its
legislation.
The EU Influence
As a member state of the EU, there is little doubt that the UK’s environmental
law and policy are strongly influenced by developments in the Community.
While the objectives and principles of the EC Treaty and EU Treaty cannot be
applied directly as a benchmark for reviewing national legislation,14 their indirect
effect can be felt via the environmental directives and regulations that emanate
from the EC. Pursuant to EC Directives, the UK has had to pass new domestic
environmental legislation that contribute to EC objectives and meet EC
environmental standards.15 As Lowe and Ward pointed out however, it is
13
Gordon, D., et al, Poverty and Social Exclusion in Britain (York: Joseph Rowntree Foundation,
2000). As at 20 November 2002, the findings are reported online by the Foundation at their
website, http://www.jrf.org.uk/knowledge/findings/socialpolicy/930.asp.
14
R. v. Secretary of State for Trade and Industry, ex p. Duddridge [1995] Env LR 151; [1996] Env
LR 325. Hereinafter “Duddridge case”.
15
In Chapter 2, I referred to the Wildlife and Countryside Act 1981 and the Conservation (Natural
Habitats etc.) Regulations 1994 which were issued pursuant to the Birds Directive, supra; and
the Habitats Directive, supra, respectively. Other examples include the Town and Country
Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1199) and the
Environmental Information Regulations 1992 (SI 1992/3240) issued pursuant to EC Directive of
27 June 1985 on the assessment of the effects of certain public and private projects on the
116
impossible to evaluate with confidence, the level of impact the EC has had on
the character of British environmental policy because one can only speculate
what might have happened had the UK remained outside the EC.16 Generally
however, the consensus is that the EC has been a positive influence insofar as
the pursuit of sustainable development in the UK is concerned. In the 1970s and
1980s, when the concept of sustainable development was just emerging, the UK
generally lagged behind its European counterparts in environmental standards
and had a reputation for being the “dirty man of Europe”. It is therefore
reasonable to surmise that but for the relentless push from the EU in terms of
environmental standard setting and enforcement, sustainable development
would probably not have taken root in UK environmental policy as fast and as far
as it has.
The original aims of the European Economic Community in 1957 were

economic, and so it was not surprising that environmental protection did not
feature in the original Treaty Establishing the European Economic Community,
now known as the Treaty Establishing the European Community.17 The absence
of any explicit legal competence for the EC to be involved in environmental
matters did not stop the Community from introducing an environmental policy
and environmental legislation. The First Environmental Action Programme18 on
the environment was adopted 1973. Article 235 of the EC Treaty allowed the
Community to take appropriate measures necessary for the attainment of one of
its objectives for which the Treaty did not explicitly provide the necessary
power.19 The Community also relied on Article 100 of the Treaty20 as a source
of legal competence in the environmental sphere. This article empowered the
environment, (85/337/EEC) [1985] OJ L175/40; and EC Directive of 7 June 1980 on the freedom
of access to information on the environment (90/313/EEC) [1990] OJ L158/56 respectively.
16
Lowe, P., and Ward, S., “Britain and Europe: Themes and Issues in National Environmental
Policy” in Lowe, P., and Ward, S., (eds.), British Environmental Policy and Europe: Politics and
Policy in Transition, (London: Routledge, 1998), p. 3, at 28.
17
Hereinafter “EC Treaty”.
18
[1973] OJ C112/1.
19
One measure taken under the Article was the Birds Directive, supra.
20
Now Article 94 of the Consolidated Version of the EC Treaty, supra.
117
Community to issue Directives for the approximation of laws of member states
that affected the establishment or functioning of the common market.21
The Single European Act 198722 established explicit legal competence in

environmental protection for the EC with the addition of an environmental
dimension to the Community’s responsibilities under Articles 130r to Article 130t
in Title VII.23 Sustainable development had not yet become a current concept at
that time, but some of its principles had begun to find their way into Community
environmental policy. Article 130r, for example, introduced the preventive
principle and the integration of environmental protection in all areas of policy.
The Treaty on European Union24, signed in Maastricht in 1992, further elevated

the importance of environmental protection within the EC. This was the year of
the Earth Summit, and the year when sustainable development became the
byword of every environmental policy maker and mainstream environmentalist.
Although prepared and finalised before the Earth Summit, the Community was
clearly influenced by developments leading to the Summit. A new Article 2 was
introduced into the EC Treaty, setting out one of the Community’s new general
objectives as the promotion throughout the Community of “a harmonious and
balanced development of economic activities, sustainable and non-inflationary
growth respecting the environment…”.25 Another new Article 3(k) provided
competence for the Community to have an environmental policy. Article 130r
was strengthened under the new Title XVI. Article 130r(2) emphasised that
environmental policy was to aim at a high level of environmental protection, and
environmental principles such as the precautionary principle and the polluter-
pays principle were also introduced into the EC Treaty. But sustainable
development was still some way from being accepted in the Community.
According to Haigh, the adoption of “sustainable and non-inflationary growth” as
an objective was a reconciliation of two concepts: sustainable development and
21
The adequacy of Article 100 as the basis for the issue of directives for environmental
protection was confirmed by the European Court of Justice in Case 92/79 Commission of the
European Communities v. Italy [1980] ECR 1115.
22
[1987] OJ L169/1.
23
Now Arts. 174-176 in Title XIX of the Consolidated Version of the EC Treaty, supra.
24
[1992] OJ C191/1. Hereinafter “EU Treaty”.
25
Emphasis mine.
118
sustained non-inflationary growth.26 Baker doubted that the use of “sustainable
growth” rather than “sustainable development” was accidental because the
Treaty was the outcome of complex, protracted and politically sensitive
bargaining among member states, and attempts to change the former to the
latter since the first draft of the Treaty had been unsuccessful.27 “Sustainable
growth” has been criticised as being a contradiction in terms – “nothing physical
can grow indefinitely”.28 On the other hand, as pointed out by the WCED,
continued growth per se, even in the developed countries was not inimical to
sustainable development; it was the nature of the growth that matterd.29 Growth,
understood in qualitative rather than physical quantitative terms, was not
necessarily bounded.
The Fifth Environmental Action Programme: Towards Sustainability – a

European Community Programme of Policy and Action in Relation to the
Environment and Sustainable Development30 that ensued in 1992 set out EC
environmental strategy for the period 1993 to 2000, and explicitly committed the
Community to the achievement of sustainable development. Developed in
parallel with the run-up to the Earth Summit, it shared most of the strategic
objectives and principles of the Rio agreements. The Commission of the
European Community31 described sustainable development as the “continued
economic and social development without detriment to the environment and the
natural resources on which continued human activity and further development
depend”. It agreed that sustainable development entailed
26
Haigh, N., “Introducing the Concept of Sustainable Development into the Treaties of the
European Union” in O’Riordan, T., and Voisey, H., (eds.), The Transition to Sustainability: The
Politics of Agenda 21 in Europe (London: Earthscan Publications, 1998), p. 70.
27
Baker, S., “The Evolution of European Union Environmental Policy”, in Baker, S., et al, (eds.),
The Politics of Sustainable Development: Theory, Policy and Practice within the European Union
(London: Routledge, 1998), p. 91, at 92-3.
28
World Conservation Union, United Nations Environmental Programme, and World Wildlife
Fund for Nature, Caring for the Earth: a Strategy for Sustainable Living (Gland, Switzerland:
IUCN, UNEP, & WWF, 1991), supra, p. 10.
29
World Commission on Environment and Development, supra, p. 44. See also Commoner, B.,
supra, pp. 141-2 for arguments to the same effect.
30
Commission of the European Community, Luxembourg: Office for Official Publications of the
European Communities, 1993. [1993] OJ C138/1. Hereinafter “5th EAP”.
31
Hereinafter “CEC”.
119
preserving the overall balance and value of the natural capital stock, redefinition of short,
medium and long term cost/benefit evaluation criteria and instruments to reflect the real
socio-economic effects and values of consumption and conservation, and the equitable
distribution and use of resources between nations and regions over the world as a
32
whole.
The 5th EAP aimed to promote “policies and programmes that will improve the
quality of human life worldwide through a more equitable distribution of natural
resources.”33 To achieve this, the programme sought to transform “patterns of
growth in the Community in such a way as to reach a sustainable development
path”. Inter alia, this implied that
the behavioural trends of citizens within the Community should reflect an appreciation that
natural resources are finite and that one individual’s consumption or use of these
resources must not be at the expense of another’s; and that neither should one
34
generation’s consumption be at the expense of those following.
The Treaty of Amsterdam Amending the Treaty on European Union, the Treaties
Establishing the European Communities and Certain Related Acts 199735 gave
further prominence to sustainable development.36 The Treaty made further
changes to the EC Treaty and EU Treaty to reflect the increasing importance of
sustainable development for environmental as well as other policies. While the
objective of “sustainable growth” has not been abandoned, a new recital was
introduced into the EU Treaty to emphasise that economic and social progress
must take into account “the principle of sustainable development … within the
context of the environmental protection”.37 The objectives of the EU as set out in
the new Article B of the EU Treaty now include the “promotion of economic and
social progress and a high level of employment and to achieve balanced and
32
Commission of the European Communities, Towards Sustainability, supra, p. 48.
33
Ibid., p. 47.
34
Ibid., p. 55.
35
[1997] OJ C340/1. Hereinafter “Amsterdam Treaty”.
36
Bär, S., and Kraemer, R. A., “European Environmental Policy after Amsterdam” (1998) Journal
of Environmental Law 10(2) 315, 330.
37
Amsterdam Treaty, Art. 1(2).
120
sustainable development…”.38 A new Article 2 in the EC Treaty also includes as
the Community’s general objectives, the promotion of
a harmonious, balanced and sustainable development of economic activities, a high level

of employment and social protection, sustainable and non-inflationary growth … a high
level of environmental protection and improvement of the quality of the environment …
39
among Member States.
The Sixth Environmental Action Programme: Environment 2010 - Our Future,

Our Choice40 succeeds the 5th EAP. It lays down the EC’s environmental action
programme for this decade. The Programme emphasises the prudent use of the
world’s natural resources and the protection of the global eco-system as one
dimension of sustainable development, the other dimensions being economic
prosperity and a balanced social development.41 Recognising that sustainable
development is concerned with “our long-term welfare here in Europe and at the
global level and with the heritage we leave to our children and grandchildren”,42
and that “the average person in the western world consumes up to 50 times
more resources in a lifetime than the average person in a developing country,
the programme is concerned with finding better and different ways of meeting
the demand for resources arising from a growing world population and continued
economic growth in the industrialised countries”.43
The 6th EAP reaffirms the relevance to Community environmental policies of the
precautionary principle, and the principles that pollution should be rectified at
source, that the polluter should pay and that priority should be given to
preventative action.44 Building on the 5 th EAP, the programme proposes to
continue to improve the implementation of existing legislation and the integration
38
Ibid., Art. 1(5).
39
Ibid., Art. 2(2). Emphasis mine.
40
Commission of the European Communities, Brussels, 24.1.2001, COM(2001)31 final.
th
Hereinafter “6 EAP”.
41
Ibid., p. 11.
42
Ibid., loc. cit..
43
44
Ibid., p. 65.
121
of environmental concerns into other areas of policy.45 Of particular interest for
present purposes is the identification of the empowerment of people as private
citizens as one priority area for strategic action.46 In this regard, the Programme
noted that revisions to Community legislation and procedures are underway to
improve transparency, access to environmental information, and public
participation as part of its commitments under the Aarhus Convention. The full
implementation of the directive on environmental impact assessment and the
proposed strategic environmental assessment are also expected to give citizens
more influence in decisions on planning, projects and policies.47
There is no doubt that EC environmental policy is underpinned by the

achievement of sustainable development. This, according to the Community’s
strategy for sustainable development, requires that “economic growth supports
social progress and respects the environment, that social policy underpins
economic performance, and that environmental policy is cost-effective”.48 It is
clear where the Community’s priorities ultimately lie. Economic growth and
social progress must be sustained; while the environment is to be “respected”,
but only so that economic growth and social progress may continue.
The National Sustainable Development Strategies
This Common Inheritance
Britain has the oldest system of environmental protection in an industrialised

society. Dating back as early as 1863, the Alkali Inspectorate was originally
established to regulate acidic emissions from the chemical industry. Yet, until
the publication of This Common Inheritance,49 the UK’s approach to
45
Ibid., p. 10.
46
Ibid., pp. 20-1.
47
Ibid., loc. cit..
48
Commission of the European Communities, Communication from the Commission: a
Sustainable Europe for a Better World: a European Union Strategy for Sustainable Development,
Brussels, 15.5.2001, COM(2001)264 final, p. 2.
49
Department of the Environment, This Common Inheritance: Britain’s Environmental Strategy
(Cm 1200) (London: HMSO, 1990).
122
environmental protection was simply a hotchpotch of common law, legislation,
and policies without any coherent underlying strategy.50 The one common
thread that consistently ran though its environmental measures was pragmatism
– a compromise of what could be achieved having regard to the local conditions
and circumstances, the current state of scientific and medical knowledge, the
financial implications, and the goodwill of industry.51
Aside from being the first comprehensive statement of British environment

policy, This Common Inheritance was the first sign of governmental acceptance
of sustainable development as a framework for policymaking.52 Sustainable
development was understood then to mean “living on the earth’s income rather
than eroding its capital … keeping consumption of renewable natural resources
within the limits of their replenishment … handing down to successive
generations not only man-made wealth … but also natural wealth”.53 The
government accepted the “ethical imperative of stewardship”, and mankind’s role
as “custodians of our planet”.54 Issues of intra-generational justice did not
feature at this stage.
According to This Common Inheritance, economic growth had to continue; it

provided the means to live better and fuller lives, and the resources for cleaning
up the environment and to produce cleaner technology.55 The government
accepted as a given that as Britain grew richer, there would be a greater demand
for material needs to be met along with an increasing demand for protection of
50
Lowe, P., and Flynn, A., “Environmental Politics and Policy in the 1980s” in Mohan, J., (ed.),
The Political Geography of Contemporary Britain (London: Macmillan, 1989), p. 255, at 256.
51
Jordan, A., “The Impact on United Kingdom Environmental Administration” in Lowe, P., and
Ward, S., (eds.), British Environmental Policy and Europe: Politics and Policy in Transition,
supra, p. 173, at 181.
52
Carter, N., and Lowe, P., “Britain: Coming to Terms with Sustainable Development?” in Hanf,
K., and Jansen, A., (eds.), Governance and Environment in Western Europe: Politics, Policy and
Administration (Harlow: Longman, 1998), p. 17, at 32.
53
See UK Government, This Common Inheritance: Britain’s Environmental Strategy, supra, para.
4.4.
54
Ibid., para 1.14.
55
Ibid., para. 1.5.
123
the natural environment and a better quality of life.56 Despite the fact that the UK
was already a major consumer of the world’s resources, the proposed solution
focussed on resource productivity without examining critically whether the
underlying demand was the real problem.57 In the final analysis, the message
sent out by This Common Inheritance was that environmental protection was
something to be pursued as long as this did not undermine economic growth.58
Following the Earth Summit, the UK was one of the first countries in the world to
prepare a national sustainable development strategy, published in 1994.
Building on This Common Inheritance and reflecting the main themes of the Fifth
EAP, Sustainable Development: the United Kingdom Strategy,59 affirmed the
importance of sustainable development and its principles.60 Its approach to
sustainable development, as in This Common Inheritance, was overwhelmingly
economic in approach, and focussed on fitting environmental concerns within
existing policies on economic development; issues of social justice did not
feature in the strategy.61 On international justice, the strategy noted that the UK
operated in a complex international framework in which individual states pursued
their own national interests individually or collectively.62 The strategy suggested
that the main way the UK could contribute to the economic development of
developing countries was by buying their products.63 The strategy did not
address the question of whether, given that the average Briton already
consumed more than his proportionate share of natural resources, there was a
more sustainable way of eliminating poverty. As for future generations, the
strategy acknowledged that the key issue for sustainability was how to consider
56
Ibid., para. 2.3.
57
Ibid., para.2.4.
58
Ibid., para. 2.6.
59
Department of the Environment, Sustainable Development: The United Kingdom Strategy (Cm
2426) (London: HMSO, 1994).
60
Ibid., Ch. 3.
61
Connelly and Smith attributed this lack of “real” discussion of the notion of social justice implicit
in sustainable development and the redistribution of resources that followed from it to the
“political sensitivity to questions of resource distribution”. See Connelly, J., and Smith, G.,
Politics and the Environment: From Theory to Practice (London: Routledge, 1999), p. 269.
62
Department of the Environment, Sustainable Development: The United Kingdom Strategy,
supra, para. 28.3.
63
Ibid., para. 28.23.
124
the interests of future generations and how these interests should be weighed in
relation to present needs. This involved individual value judgements and
consideration through political processes.64
Sustainable development under the conservative government was a matter of

reconciling a society’s twin aspirations of achieving economic development to
secure rising standards while protecting and enhancing the environment.65 In
this reconciliation, economic growth was a non-negotiable rimperative for the
improvement of the quality of life;66 the then Secretary of State for the
Environment, John Gummer, insisted at the outset that a society that did not
grow was one that could not satisfy some of their basic needs.67 To the
government, sustainable development seemed synonymous with sustainable
economic development. To them, the challenge was to promote environmental
friendly economic activity and to discourage environmentally damaging ones.68
This it would do by integrating environmental costs into decision-making at all
levels69 and relying on the polluter pays principle.70
While the need for intergenerational justice was acknowledged, intra-

generational justice issues were only implicitly addressed. Without targets,
deadlines, firm commitments and new initiatives, the White Paper was important
not so much for what it had to offer, but what it stood for.71 That it had even
been produced gave hope that steps would eventually be taken in the right
direction.
A Better Quality of Life
64
Ibid., para. 29.11.
65
Department of the Environment, Sustainable Development: The United Kingdom Strategy,
supra, para. 3.1.
66
Ibid., para. 3.3.
67
Ibid., p. 5.
68
Ibid., para. 3.5.
69
Ibid., para. 29.1.
70
Ibid., para. 3.16.
71
Voisey, H., and O’Riordan, T., “Governing Institutions for Sustainable Development: The
United Kingdom’s National Level Approach” (1997) Environmental Politics 6(1): 24, 28.
125
Following some years of inactivity in the environmental policy field after coming
into power in 1997, the Labour Government published its own national strategy
on sustainable development in 1999. A Better Quality of Life: a Strategy for
Sustainable Development for the United Kingdom 72 represents a significant shift
in the understanding of sustainable development in the UK. It accepted that
intra-generational equity, including international and intra-national equity, were
important components of sustainable development. According to the strategy,
the elements of sustainable development are “social progress which recognises
the needs of everyone without treating others, including future generations and
people elsewhere in the world, unfairly; … effective protection of the
environment; prudent use of natural resources; and maintenance of high and
stable levels of economic growth and employment”.73 Its strategies for “social
progress” include the elimination of poverty and social exclusion,74 inter alia,
through a better understanding of the impacts of government policies on different
groups in society, particularly women, ethnic minorities, and the disabled,
greater access to environmental information, and new modes for public
participation.
Where the strategy falls short is in respect of its dogmatic obsession with
economic growth; it insists that meeting basic needs requires the maintenance of
“high and stable levels of economic growth and employment”:
abandoning economic growth is not a sustainable development option: to do so would

close off opportunities to improve quality of life through better healthcare, education, and
housing; to combat social exclusion; to revitalise our cities, towns and rural areas; and to
75
protect and enhance our environment.
Economic growth and employment are to be maintained through the “production

of high quality goods and services that customers throughout the world want,
and at prices they are prepared to pay”. In a country already depleting a
72
Department of the Environment, Transport and the Regions, (Cm 4345) (London: TSO, 1999).
Hereinafter “A Better Quality of Life”.
73
Ibid., Ch. 1.
74
Ibid., Chs. 7 and 9.
75
Ibid., para. 3.12.
126
disproportionate share of the world’s natural resources, continued economic
growth would rely on technological innovation and greater resource efficiency.76
As I explained earlier in Chapter 3 however, relying on technological innovation
and greater resource efficiency alone may not be enough. The strategy itself
noted that
just to keep the United Kingdom's resource use at today's levels would require resource
efficiency to improve at a rate which matches the growth in the economy. But that rate of
change will not be enough to reduce global environmental pressures which are already
severe, in particular since increases in global consumption will be necessary to eradicate
77
extreme poverty.
Furthermore, without examining the legitimacy of the needs or aspirations to be

met, and without reducing the total level of resource use, merely improving the
means of production is futile because aspirational needs are insatiable.
Unsustainable development will be the result if more and more resources
continue to be diverted to the satisfaction of the aspirational needs of customers
throughout the world who can afford to pay.
The Environment Agency’s Contribution to Sustainable

Development
A significant step towards the realisation of sustainable development was taken

when the concept was put on a legal footing. The Environment Agency was
created under the Environment Act 1995,78 inter alia, to carry out the functions of
the National Rivers Authority, waste regulation authorities, and Her Majesty’s
Inspectorate of Pollution.79 For the first time, an agency was given a statutory
aim to contribute to sustainable development. Section 4(1) of the Act provides
that the “principal aim” of the Agency in discharging its environmental protection
and enhancement functions is to make the contribution to sustainable
development pursuant to ministerial guidance issued under s. 4(2) of the Act.80
76
Ibid., Ch. 6.
77
Ibid., para. 6.7.
78
79
ss. 1 and 2. Hereinafter “HMIP”.
80
Section 4(3) describes the achievement of sustainable development as an objective rather
127
Sustainable development is not defined in the Act itself, understandably so given
the difficulty of condensing the concept into a precise essence capable of judicial
application, but the then Secretary of State for the Environment, in line with the
prevailing pro-economic growth sustainable development strategy described the
concept thus:
Balance is at the heart of sustainable development … We need to grow, if we are to be

able to provide the resources our people need, but at the same time we need to grow in a
sustainable way … That means reconciling the needs of the environment and of economic
81
development, rather than pursuing one at the cost of the other.
Statutory ministerial guidance on the Agency’s contribution to the achievement of

sustainable development was issued in November 1996.82 According to the
guidance, the Agency’s contribution to sustainable development includes the
adoption of a holistic approach to environmental protection and enhancement by
optimising benefits to the environment as a whole, taking into account all likely
costs and benefits; the adoption of a long term perspective, including issues of
intergenerational equity; and the contribution to the protection of the global
atmosphere by having regard to the government’s international commitments.83
The Agency is also required to take in aspects of an intra-generational equity of
sorts: where appropriate to do so, it must consider the distribution of costs and
benefits “across the economy”.84
As noted earlier, A Better Quality of Life has since elevated the importance of
social justice as a component of sustainable development. It is no longer
enough to be concerned about the uneven distribution of costs and benefits
arising from environmental decisions; positive action must also be taken to
than an aim. The significance of this distinction is not clear.

81
Hansard, HC, 18 April 1995, Vol. 258, cols. 37-8.
82
Department of the Environment, The Environment Agency and Sustainable Development,
Incorporating: Part I – Statutory Guidance to the Environment Agency made under Section 4 of
the Environment Act 1995; and Part II – Explanatory Document Accompanying the Statutory
Guidance, B9709 November 1996, 96EP189/1 (London: HMSO, 1996). Hereinafter “The
Environment Agency and Sustainable Development”.
83
Ibid., pp. 3 and 4.
84
supra, Part II, para. 5.6(vi)(d).
128
eliminate poverty and socially exclusion. Although the Agency remains legally
bound by the existing ministerial guidelines, the current strategy has influenced
the Agency’s approach to sustainable development even before the government
issues its own ministerial guidelines on sustainable development to the Agency
to formally signal the shift.
In contrast to the explicit requirement in the ministerial guidance to consider

issues of intergenerational equity, reference to intra-generational equity is more
oblique. Thus, in its early years, the Agency considered its role in sustainable
development as one of balancing the demands on the environment placed by
present human needs with environmental protection,85 without reference to any
responsibility for social equity. Given the greater emphasis on social justice in A
Better Quality of Life, more consideration is being given by the Agency to issues
of intra-national equity in the form of combating social exclusion; the Agency
recently described sustainable development as “a balance of environmental
protection, social equity, and wealth creation”.86 At its Annual General Meeting
in September 2000, the Agency also hosted a panel discussion on the topic of
achieving environmental equality. At the discussion, the Chairman of the
Agency commented on the considerable scope for the Agency to tackle
environmental inequalities.87 More recently, the Agency noted the need to be
more aware of social issues raised by its work in protecting and improving the
environment, such as the needs of people in poverty who live in the most
polluted neighbourhoods.88 These developments signal a shift towards a greater
awareness by the Agency of the social dimensions of its contribution to
sustainable development.
Reflecting the policy context within which it operates, the Environment Agency’s
contribution to sustainable development maintains the emphasis on economic
85
See for example, the Agency’s foreword in An Environmental Strategy for the Millennium and
Beyond (Bristol: Environment Agency, 1997), pp. 5 and 13.
86
Environment Agency, Creating an Environmental Vision: Progressing the Environment
Agency’s Contribution to Sustainable Development By Way of a Better Environment in England
and Wales, (Bristol: Environment Agency, 2000), para. 2.1.
87
Environment Agency, (November 2000) Environment Action 27: 10.
88
Environment Agency, An Environmental Vision: The Agency’s Contribution to Sustainable
Development, supra, p. 10.
129
development. Thus, the Agency’s contribution to sustainable development must
still
reconcile the needs of the environment and those of development by regulated

organisations … where possible … in partnership with these regulated organisations in
ways which maximise the scope for cost-effective investment in … [improved] technologies
and [management] techniques seeking to take advantage of companies’ planned
89
investment cycle.
In line with A Better Quality of Life, the draft statutory guidance to the Agency
also considers that the Agency’s role in contributing to sustainable development
is, inter alia, to “protect and enhance the environment in a way that takes
account (so far as is consistent with its legal obligations) of economic and social
considerations”.90 The Agency has affirmed the economic dimension of its
contribution to sustainable development, noting that its role as “champion for
sustainable development” is to “protect and enhance the environment in a way
that links with measures to promote social fairness and a prosperous, efficient
economy”.91
Costs and Benefits
In line with the economic dimension of the Environment Agency’s contribution to

sustainable development, the Agency is required to take account of the likely
costs to any persons or to the environment of making such a contribution.92 This
is a new statutory duty not imposed on the Agency’s predecessors in the
discharge of their functions. Similarly, s. 39 of the 1995 Act requires the Agency
to take into account the likely costs and benefits in deciding whether to exercise
a power and the manner of its exercise, “unless and to the extent that it is
89
supra, Part II, para. 4.3(v).
90
Department for Environment, Food and Rural Affairs, The Environment Agency’s Objectives
and Contribution to Sustainable Development: Statutory Guidance – Consultation Document
(London: HMSO, 2002), para. 5.2.
91
Environment Agency, An Environmental Vision: The Environment Agency’s Contribution to
Sustainable Development, supra, p. 18. Emphasis mine.
92
1995 Act, ss. 4 and 56.
130
unreasonable for it to do so in view of the nature and purpose of the power”. No
duty to take account of costs and benefits arises in respect of the Agency’s
duties or its pursuit of any objectives imposed upon or given to it.
Although the Environment Agency is apparently not required by statute to

consider the likely benefits arising from its contribution to sustainable
development, ministerial guidance requires the Agency to optimise
environmental benefits, taking account of long-term costs and benefits. The
draft statutory guidance to the Agency also indicates that the Agency should
“develop approaches which deliver environmental requirements and goals
without imposing excessive costs (in relation to benefits gained) on regulated
organisations or on society more widely”.93
The Agency has noted that a formal cost-benefit analysis is not required;94
neither is it restricted to taking account of costs and benefits that are quantifiable
in monetary terms or to reduce all costs and benefits to monetary values,95 or for
that matter, even to strive to maximise net benefit.96 When certain costs and
93
Department for Environment, Food and Rural Affairs, The Environment Agency’s Objectives
and Contribution to Sustainable Development: Statutory Guidance – Consultation Document,
supra, para. 5.8.
94
Environment Agency, Sustainable Development: Taking Account of Costs and Benefits
(Sustainable Development Publication Series: SD3) (Bristol: Environment Agency, 1996), para.
3.3.
95
This is also the view taken in the ministerial guidance on the scope of the Agency’s duty in
relation to costs and benefits. See Department of the Environment, The Environment Agency
and Sustainable Development, supra, Part II, para. 5.5(iii). Indeed, the Agency’s attempt to
quantify the wildlife and conservation value of reducing the volume of water abstracted by
Thames Water from the river Kennett in Wiltshire should make it clear that any attempt to inject
objectivity in environmental decision-making by reducing all costs and benefits to monetary terms
is illusory because the quantification of certain costs and benefits can be quite subjective. In this
particular case, the value of the river depended on the choice of geographical scope for the
exercise. See “Water Abstraction Decision Deals Savage Blow to Cost-Benefit Analysis” (March
1998) ENDS Report 278: 16.
96
Environment Agency, Sustainable Development: Taking Account of Costs and Benefits,
supra., para. 3.2. It is submitted that the Agency’ s interpretation of its duty to take account of
the likely costs and benefits as not amounting to a duty to maximise self-benefit is correct in the
in the light of its other duty to take account of intra-generational and intergenerational equity in
making its contribution to sustainable development.
131
benefits cannot be meaningfully reduced to monetary values or aggregated, and
the Agency cannot make a straightforward comparison of the two, it will have to
make a judgement as to the appropriate weight to be assigned to essentially
incommensurable costs and benefits.97 This may involve the use of other
analytic tools such as multi-attribute analysis.98
The Authorisation of Radioactive Waste Disposal
There can be no doubt that the disposal of radioactive wastes, even low-level
radioactive wastes, is a potentially contentious matter. Kemp for example,
described the disposal of radioactive wastes as the most troublesome
environmental problem generated by industrial societies.99 He argued that
technologically acceptable solutions already existed, and that public acceptability
was the key to successful radioactive waste disposal.100 According to him, the
key to cutting the “Gordian Knot of science and values which fetters radioactive
waste disposal”101 is to instil faith and trust in the way in which decisions are
made, inter alia, through consultation and negotiation with the public.102 While
that may be correct from a legitimacy point of view, I show in Chapters 7 and 8
that insofar as the substantive quality of the decision is concerned, the problem
stems from the inability of decision-makers to rationally justify the production and
consequently disposal of radioactive wastes, and in turn the mode of disposal for
disposal of radioactive wastes in sustainable development terms. Ultimately, the
97
supra, Part II, para. 5.5(iii).
98
Environment Agency, Sustainable Development: Taking Account of Costs and Benefits,
supra., para. 4.4.
99
Kemp, R., The Politics of Radioactive Waste Disposal (Manchester: Manchester University
Press, 1992), p. 1.
100
Ibid., loc. cit.. At the same time, he admits that there is little actual operating experience in
radioactive waste management, and much of this limited experience has not been favourable,
thus seemingly contradicting his own claim that acceptable technological solutions already exist.
Presumably, what he has in mind when he refers to technological acceptability is the
acceptability of these solutions to technologists, rather than the technical viability of these
solutions.
101
Ibid., p.2.
102
Ibid., p. 165.
132
decisions to proceed are nothing more than exercises of authority rather than
reason.
The contentiousness of decisions about radioactive waste management in other

aspects of ‘nuclear’ decisions, such as whether to build a thermal oxide
reprocessing plant, or whether to build a pressurised water reactor have also
been studied elsewhere.103 Other writers have considered the fairness and
thoroughness of public inquiries in nuclear-related environmental decision-
making: Wynne examined the extent to which decision-making at the Windscale
Inquiry and public decision-making in general were rationalising rituals rather
than rational processes,104 while O’Riordan, Kemp and Purdue examined the
extent to which the Sizewell B Inquiry was a legitimising rather than legitimate
exercise.105
The regulation of disposal of radioactive wastes in England and Wales comes

under the 1993 Act, and is one of the Environment Agency’s many “pollution
control powers” and “pollution control functions”.106 Under s. 13 of the 1993 Act,
no person may dispose radioactive waste except in accordance with an
authorisation granted by the Agency. An authorisation may be granted subject
to such limitations and conditions as the Agency thinks fit.107 Once granted, an
authorisation is subject to revocation or variation at any time.108 The applicant or
grantee of an authorisation may however appeal to the Secretary of State
against an Agency decision to refuse to grant an authorisation, to grant an
authorisation subject to limitations and conditions, or to revoke or vary an
authorisation.109 The Secretary of State may also give general or specific
103
See Parker, R., The Windscale Inquiry (London: HMSO, 1978); and Layfield, F., Sizewell B
Public Inquiry (London: HMSO, 1987).
104
Wynne, B., Rationality and Ritual: The Windscale Inquiry and Nuclear Decisions in Britain,
supra, p. 176. See also, Kemp, R., “Planning, Public Hearings, and the Politics of Discourse”,
supra.
105
O’Riordan, T., Kemp, R., and Purdue, M., supra.
106
1995 Act, s. 5.
107
s. 16(8).
108
s. 17.
109
s. 26.
133
directions to the Agency in respect of any authorisation,110 or direct that an
application for authorisation be referred to him for decision.111
According to statutory ministerial guidance, the Environment Agency contributed

to sustainable development by exercising its regulatory functions under the 1993
Act in accordance with the 1995 White Paper, Review of Radioactive Waste
Management Policy: Final Conclusions.112 This required, inter alia, that
radioactive waste management policy should be based on the same basic principles as
apply more generally to environmental policy and in particular on that of sustainable
113
development.
The adherence of radioactive waste management policy to principles of

sustainable development has been reaffirmed in the draft Statutory Guidance to
the Agency on the Regulation of Radioactive Discharges into the Environment
from Nuclear Licensed Sites,114 issued in exercise of powers under s. 4(6) of the
1995 Act. Consistently with these basic principles which included the use of best
possible scientific information and analysis of risks; the adoption of precautionary
action; the consideration of ecological impacts; and the polluter pays principle,
radiation protection principles and criteria were to ensure that there were no
unacceptable risks associated with radioactive waste management. Importantly,
producers and owners of radioactive waste were to ensure that they did not
create waste management problems that could not be resolved using current
techniques, or techniques that could be derived from current lines of
development.115 At the same time, the White Paper pointed out that it had to be
recognised that a point would be reached where additional costs of further
110
s. 23.
111
s. 24.
112
Department of the Environment, et al, Review of Radioactive Waste Management Policy:
Final Conclusions (Cm 2919) (London: HMSO, 1995). Hereinafter “Review of Radioactive
Waste Management Policy”.
113
Ibid., para. 50. Original emphasis.
114
Department for Environment, Food and Rural Affairs, Statutory Guidance on the Regulation of
Radioactive Discharges into the Environment from Nuclear Licensed Sites: Consultation Paper
(London: HMSO, 2000), Part I, para. 9.
115
Ibid., para. 52.
134
reductions in risk exceeded the benefits arising from the improvements in safety
achieved. The level of safety was also not to be inconsistent with those
accepted in other spheres of human activity.116
Public Participation in Environmental Decision-making by the

Environment Agency
One of the ways in which the Environment Agency is required to contribute to

sustainable development is to “strive to develop a close and responsive
relationship with the public, local authorities and other representatives of local
communities, regulated organisations and public bodies with environmental
responsibilities”,117 and to work in partnership with all such groups.118 Increasing
public involvement also supports the government’s sustainable development
strategy of promoting greater public involvement in shaping communities.119
The Environment Agency also acknowledged the value of greater public

participation in informing decision-makers of significant issues of public concern
and the proper weight to be given to various issues120 - “[d]ecisions will be more
robust if based on a measure of consensus between those with a stake in what
happens”.121 As the Agency pointed out, how consensus was achieved was also
important, inter alia, because it shaped the consensus itself.122 In this respect,
the Agency noted that consensus per se was not sufficient; it had to be the result
116
Department of the Environment, et al, Review of Radioactive Waste Management Policy,
supra, para. 51.
117
supra, Part I, para. 9(vii).
118
Ibid., Part II, para. 4(vi).
119
Department of the Environment, Transport and the Regions, A Better Quality of Life, supra,
para. 7.91.
120
Environment Agency, Consultation Paper: Proposals for Extended Public Consultation on
Selected Licence Applications (Bristol: Environment Agency, 1999), para. 1.5. Hereinafter
“Proposals for EPC”.
121
Environment Agency, Consensus Building for Sustainable Development, SD12 (Bristol:
Environment Agency, 1998), para. 3.2.
122
Ibid., para. 2.2.
135
of a process that provided for “both informed debate and the opportunity for
divergent views, interests and values to be heard and understood”.123
In line with the its aim of raising the level of increasing public participation in
environmental decision-making, the Environment Agency introduced extended
public consultation for selected licence applications, taking the view that
extended consultation “increases public understanding of applications and the
Agency’s role in determining them, alerts the Agency to public concerns,
establishes the legitimacy of the decision-making process, helps to enhance
public trust and confidence and promotes acceptance of the final decision”.124
Importantly, of the reasons given, only one – “alerts the Agency to public
concerns” – suggests that the public has any contribution to make to the
substantive quality of the Agency’s decision. Even then, only a minor supporting
role is envisaged; the Agency retains full control of the decision-making process
and all determinations of fact and value. The benefits of public participation
discussed in Chapter 4 seem to have been undervalued, overlooked or
neglected.
To further its declared ends of extended public consultation, the Environment

Agency undertook pilot studies of extended public consultation in several of its
environmental decisions. Concurrently, it consulted the public on its proposals
for extended public consultation on selected licence applications, inter alia,
seeking their views of on the criteria for determining when it would be
appropriate to conduct extended public consultation beyond the minimal
statutory requirements for the grant of environmental licences; and the suitability
of various mechanisms for such extended consultation.125 Three years down the
road, the Agency has still not formalised its current ad hoc approach to extended
public consultations in selected environmental decisions.
Taking into account their national importance, significant contentious

environmental issues, history of significant public complaint or concern, and
potential for significant local environmental effects, it is not surprising for
123
Ibid., para. 6.1.
124
Environment Agency, Magnox Decision Document, infra, para. P5.34.
125
Environment Agency, Proposals for EPC, supra.
136
applications for authorisation to dispose radioactive discharges into the
environment to be considered appropriate candidates for extended public
consultation.126 In this regard, the three case studies in Part 2 had all been
subjected to the Agency’s extended public consultation process.
Conclusion
I have in this chapter introduced in broad terms, the policy and regulatory
framework under which the authorisation of radioactive waste disposal takes
place. There is no question that the UK is in principle committed to the
achievement of sustainable development.
While the UK has understood and accepted the objective of sustainable

development, its strategy for attaining sustainable development is itself ultimately
unsustainable. Despite acknowledging the need for intra-generational and
intergenerational equity, the emphasis of the strategy has been on instrumental
rationality. Sustainable development has been interpreted as the improving the
quality of life for all, within ecological limits. Treating the ends of production and
consumption as a given, the strategy’s diagnosis is that unsustainable
development is predominantly related to resource under-supply rather than
resource over-demand due to inequitable resource distribution and accordingly,
the remedy is primarily the prescription of a strong dose of economic growth,
driven by technological innovation and improvements in resource productivity, in
order to increase the supply of resources to meet increasing consumer demand.
Provided it delivers, a strategy that promises more for everyone without

increasing the total quantity of resources consumed is not inconsistent with
sustainable development as distributive justice as such; it is surely in the
common interest of all to have greater access to natural resources to meet their
needs and aspirations. Hypothetically, an economy can continue to grow in a
way that provides for present needs, and at the same time ease the pressure on
natural resources. In reality however, improvements in efficiency often solve
problems but create new ones. Emphasising the technical rather than the equity
126
Ibid., paras. 2.2 and 2.3.
137
dimension as the foundation of sustainable development also means that aside
from the question of whether resource efficiency can improve by the requisite
magnitude to meet more needs and aspirations and reduce the UK’s
disproportionate depletion of resources,127 there remains no certainty that
without adequate attention to the distributive effects of such improvements,
priority for access to any surplus ecological capacity will be diverted to meeting
basic needs and nature conservation instead of maximising the satisfaction of
consumer demand according to ability and willingness to pay. Furthermore, a
technical approach to sustainable development is likely to give rise to expert-
driven rather than participation-driven environmental decision-making. A strong
reliance on technological innovation to deliver sustainable development also
encourages greater risk-taking on the part of environmental decision-makers.
Without due regard for equity issues, the distribution of these risks is likely to be
inequitably distributed spatially and temporally, in line with the distribution of
economic and political power.
The Environment Agency’s statutory aim to contribute to the achievement of

sustainable development extends to its function as the regulator of the disposal
of radioactive waste. As such, it is required, consistently with the government’s
strategy for sustainable development, to take into account the economic and
social considerations of its decisions. The extent to which it successfully
balances these considerations when authorising the disposal of radioactive
wastes, to reach decisions based on impartial value judgements and reliable
knowledge will be examined in the chapters that follow.
127
It has been estimated that resource productivity would have to increase tenfold or more by
2050 just to allow economic growth to continue. See Department of the Environment, Transport
and the Regions, Achieving a Better Quality of Life: Review of Progress towards Sustainable
Development – Annual Report 2000 (London: DETR, 2001), para. 4.8.
138
Chapter 6: An Overview of the Case Studies and Method of
Study
The Case Studies
As mentioned earlier, the case studies concern the Environment Agency’s

revised authorisations for the disposal by AWE plc of radioactive wastes at the
Atomic Weapons Establishments1 in Aldermaston and Burghfield;2 its
authorisations for the disposal by BNFL of radioactive wastes from several
magnox power stations and a research centre in various locations;3 and its
review of existing authorisations for the disposal of radioactive wastes by BNFL
from operations at Sellafield.4 The study is based on documents published by
the Agency in respect of its public consultation on these decisions, as well as on
my attendance at one public meeting organised by the Agency in respect of the
Sellafield Decision.5
The AWE Decision
The first case study concerns the Agency’s consideration of AWE plc’s
application, in February 1998, to the Environment Agency for revised
authorisations under s. 13 of the 1993 Act to dispose radioactive wastes from the
Atomic Weapons Establishments at Aldermaston and Burghfield in Berkshire
from April 2000.
The Ministry of Defence6 owns the AWE. The site is operated by AWE plc,
which in turn is owned by AWE Management Ltd.,7 a government appointed
1
Hereinafter “AWE”.
2
Hereinafter “AWE Decision”.
3
Hereinafter “Magnox Decision”. The locations are at Berkeley, Bradwell, Dungeness, Hinkley
Point, Oldbury, Sizewell, Trawsfynydd, and Wylfa.
4
Hereinafter “Sellafield Decision”.
5
The meeting was held at Manchester Town Hall on 1 November 2001.
6
Hereinafter “MOD”.
7
Environment Agency, Radioactive Substances Act 1993: Decisions on Application by AWE plc
139
contractor comprising a consortium of SERCo, British Nuclear Fuels plc,8 the
Lockheed Martin Corporation,9 and the Secretary of State for Defence.10 AWE
plc designs, manufactures, and services Trident nuclear weapons and carries
out the decommissioning of redundant Chevaline nuclear warheads and
associated nuclear process plants at the two sites.11 The radioactive wastes
arise from the production and support of the new Trident Weapons system and
decommissioning of past site operations since 1950.12 These operations give
rise to solid, liquid and gaseous radioactive wastes principally consisting of
tritium, uranium or plutonium.13
The Environment Agency initiated a review in August 1997 of radioactive waste

management practices at the AWE and concluded that new limitations and
conditions on transfers and discharges of radioactive wastes were necessary.14
Another review was carried out in December 1997, this time by the Radioactive
Waste Management Advisory Committee (“RWMAC”).15 These reviews
prompted an application by AWE plc for revised authorisations.16 Revised
authorisations were granted on in March 2000 and took effect on 1 April 2000.17
to Dispose of Radioactive Wastes from the Atomic Weapons Establishments at Aldermaston and
Burghfield (Bristol: Environment Agency, 2000), para. 1.4.3. Hereinafter “AWE Decision
Document”.
8
Hereinafter “BNFL”.
9
Environment Agency, AWE Decision Document, supra, para. 1.4.4.
10
Environment Agency, Radioactive Substances Act 1993: Consultation Document on
Application by AWE plc for Authorisation to Dispose of Radioactive Wastes from the Atomic
Weapons Establishments at Aldermaston and Burghfield (Bristol: Environment Agency, 1999)
(hereinafter “AWE Consultation Document”), para. 1.5.3.
11
Ibid., para. 1.3.1.
12
Ibid., para. 1.4.1.
13
Ibid., para. 1.3.2.
14
Ibid., para. 1.7.1.
15
Ibid., para. 1.7.2. The Committee, hereinafter “RWMAC”, was set up primarily to advise the
Secretaries of State for the Environment, Scotland and Wales on the technical and
environmental implications of major issues concerning the development and implementation of
an overall policy for all aspects of the management of civil radioactive waste.
16
Ibid., para. 1.7.3.
17
Environment Agency, AWE Decision Document, supra, paras. 5.5 and 5.6.
140
The Magnox Decision
The second case study concerns the Environment Agency’s consideration of

applications from BNFL. The applicant was set up in 1971 out of the Production
Group of the UK Atomic Energy Authority, and became a private limited
company in 1984. Prior to BNFL’s application for authorisation for disposal of
radioactive wastes from the eight magnox power stations and research facility in
question, all variously located,18 authorisations to dispose radioactive wastes
from these power stations and the research facility were held by Magnox Electric
plc, a wholly owned subsidiary of BNFL. Radioactive wastes discharged at
these sites include discharges of tritium, carbon-14, sulphur-35, argon-41,
caesium-134, caesium-137 and strontium-90.19 When BNFL decided to take
over the operation of five of these power stations and the research facility as well
as the decommissioning of the remaining three power stations in 1998, it
became necessary for BNFL to apply for its own authorisations for the disposal
of radioactive wastes from these sites.20 On 31 July 2001, the Agency proposed
to grant the authorisations. These proposals were published on 30 August
2001.21 It is now waiting for the Ministers’ decision whether to exercise their
powers under the 1993 Act to issue directions to the Agency.
The Sellafield Decision
The activities of BNFL undertaken at the Sellafield site which give rise to
radioactive wastes are spent fuel (magnox and oxide) reprocessing; liquid waste
storage and treatment; solid waste storage, retrieval and treatment;
18
Namely Gloucestershire, Essex, Kent, Somerset, South Gloucestershire, Suffolk, Gwynedd,
and Anglesey.
19
Environment Agency, AWE Decision Document, supra, paras. P1.21 to P1.31.
20
Environment Agency, Radioactive Substances Act 1993: Proposed Decision Document on
Applications Made By British Nuclear Fuels plc to Dispose of Radioactive Wastes From: Berkeley
Centre, Berkeley Power Station, Bradwell Power Station, Dungeness A Power Station, Hinkley
Point A Power Station, Oldbury Power Station, Sizewell A Power Station, Transfynydd Power
Station, Wylfa Power Station (Bristol: Environment Agency, 2001), p. 7. Hereinafter “Magnox
Decision Document”.
21
Ibid., Part 7.
141
decommissioning operations; the operation of a nuclear power station; and
radiochemical analysis and research and development.22 The numerous
principal radionuclides produced from these activities and their current disposal
routes are set out in the Sellafield Consultation Document.23
The current authorisations for the discharge of liquid and gaseous radioactive
wastes by BNFL at the Sellafield site were issued in 1994 while the authorisation
for disposal of low-level solid radioactive wastes was issued in the 1970s. As
part of its function in regulating radioactive waste disposal, and at the request of
the then Secretary of State for the Environment and the Minister of Agriculture,
the Environment Agency commenced a re-examination of the existing
authorisations for the disposal of liquid and gaseous radioactive wastes by BNFL
at the site in 199624 with a view to varying the authorisations under s. 17 of the
1993 Act.25 This re-examination was deferred shortly thereafter to enable the
Agency to consider BNFL’s application for certain variations to existing
authorisations. Having granted the application in January 2000, the Agency
resumed its re-examination with a view to issuing variations to all existing
authorisations to dispose radioactive wastes at the site so as to include new
limits and conditions as appropriate.26
The review has been taking place in a number of stages. The Environment
Agency consulted the public and interested parties on its proposed scope and
methodology for the re-examination from February to April 2000,27 and
Environment Agency, Radioactive Substances Act 1993: Explanatory Document to Assist Public
Consultation on Proposals for the Future Regulation of Disposals of Radioactive Waste from
British Nuclear Fuels plc Sellafield (Bristol: Environment Agency, 2001), Appendix 3. Hereinafter
“Sellafield Consultation Document”.
23
Ibid., paras. 5.14 and 5.23.
24
Environment Agency, Radioactive Substances Act 1993: Scope and Methodology for the Full
Re-examination of the Sellafield Authorisations for the Disposal of Radioactive Waste (Bristol:
Environment Agency, 2000), para. 2.0. Hereinafter “Sellafield Scope and Methodology
Consultation Document”.
25
Ibid., p. 4.
26
A decision was taken to widen the scope to the re-examination (ibid., p. 3).
27
Environment Agency, Sellafield Scope and Methodology Consultation Document, supra.
142
responded to their comments in August 2000.28 In the meantime, at the request
of the then DETR, the Agency began a fast track review of the discharge of
technetium-99 into the Irish Sea with a view to reducing discharges from 90 TBq
per year to below 10 TBq per year by 2006. Public consultation on its proposals
for the future regulation of technetium-99 discharges took place from November
2000 to March 200129, and the Agency issued its proposed decision in
September 2001.30 The latest round of public consultation is in respect of the
Agency’s proposals for the future regulation of radioactive wastes disposal from
Sellafield (excluding those for technetium-99), and recently took place from July
to December 2001.31 The Agency has yet to reach a decision on the review.
The focus of the third case study is on the environmental decision-making
process relating to the main review of the future regulation of radioactive wastes
disposal from Sellafield.
The Criteria for Evaluating Public Participation
I concluded in Chapter 4 that broad-based public deliberation in environmental

decision-making could enhance the quality of environmental decisions because it
increases the likelihood that value judgements will be made impartially and
knowledge construction will be unbiased. It is clear that not all forms of public
participation are equally effective in improving the quality of environmental
decisions. In particular, participation on unequal or coercive terms on the basis
of relative political or economic power instead of on the basis of a rationally
accepted consensus amongst moral equals motivated to act impartially in the
common interest will not contribute to sustainable development if it reinforces the
28
Environment Agency, Radioactive Substances Act 1993: Response to Comments on the
“Scope and Methodology for the Full Re-examination of the Sellafield Authorisations for the
Disposal of Radioactive Waste” (Bristol: Environment Agency, 2000). Hereinafter “Sellafield
Scope and Methodology Response Document”.
29
Environment Agency, Radioactive Substances Act 1993: Explanatory Document to Assist
Public Consultation for the Future Regulation of Technetium-99 Discharges from British Nuclear
Fuels plc, Sellafield into the Irish Sea (Bristol: Environment Agency, 2000).
30
Environment Agency, Radioactive Substances Act 1993: Proposed Decision on the Future
Regulation of Technetium-99 Discharges from British Nuclear Fuels plc Sellafield into the Irish
Sea (Bristol: Environment Agency, 2001).
31
Environment Agency, Sellafield Consultation Document, supra.
143
existing inequitable access to natural resources to meet needs within and
between generations or produces well-intentioned but misinformed outcomes
that are not properly grounded in reliable knowledge.
Habermas is one writer amongst others whose work is orientated towards the
inter-subjective understanding and the coordination of actions through reflective
discussion.32 He argues that public participation, or more specifically public
discourse, in an ideal speech situation leads to comprehensively rational
decisions.33 Discourse participants in an ideal speech situation engage freely in
dialogue on equal terms. They have equal rights to make validity claims34 to
others about the objective world, their shared norms and values, and their
subjective feelings; and equal duties, if required to do so by other participants, to
justify he comprehensibility, truth, correctness or sincerity of their claims on
rational grounds.
Building on Habermas’ theory of communicative action and the ideal speech

situation,35 Webler proposed criteria for evaluating the extent to which public
participation procedure promoted the fairness and competence of public
participation in environmental decision-making.36 Briefly, fairness refers to the
distribution among participants of opportunities to attend, initiate discourse,
discuss, and make decisions at each stage of environmental decision-making,
namely agenda and rule setting, moderation and rule enforcement, and
discussion.37 To promote competent discourse, which he defined as the
construction of “the most valid understandings and agreements and agreements
possible given what is reasonably knowable at the time”,38 Webler suggested
that the public participation procedure should provide access to information and
32
See also Dryzek, J., Discursive Democracy: Politics, Policy, and Political Science, supra, pp.
13-4; and Barber, B. R., supra.
33
McCarthy, T., supra, Ch. 4.
34
Webler describes a validity claim as “the appeal implicit in a statement that makes the
message meaningful”. See Webler, T., supra, p. 43. Original emphasis.
35
Ibid., pp. 41-2.
36
I describe these criteria in greater detail in Chapter 6.
37
38
Ibid., p. 58.
144
its interpretations, and procedures for the evaluation and selection of knowledge
by participants.39
Webler is not the first to use the concept of the ideal speech situation to develop
normative criteria for public participation in environmental decision-making.
Forester had used the ideal speech situation to planning practice, and argued
that planning practice should be communicative rather than exclusively
instrumental or technocratic. Effective communication revealed true alternatives,
corrected false expectations, countered cynicism, fostered inquiry, and spread
political responsibility, engagement, and action. In order to be effective
communicators, planners ought therefore to strive to be comprehensible,
sincere, legitimate, i.e., appropriate to the context and topics under discussion,
and truthful.40
Kemp evaluated the public local inquiry on nuclear waste reprocessing at

Windscale. He concluded that the communication process at the inquiry was
systematically distorted to enable the domination of particular interests over
more generalizable interests and the outcome did not reflect a genuine
consensus on the issue reached solely due to the force of the better argument.41
Together with O’Riordan and Purdue, Kemp also considered the extent to which
the Sizewell inquiry was full, fair, and through, i.e., whether decision-making was
merely legitimising rather than truly legitimate.42
More recently, Palerm used the principles of the ideal speech situation as a
basis for evaluating the application of the Aarhus Convention in the context of
environmental impact assessments and concluded that the Convention fell short
of Habermas’ conditions for communicative action under the ideal speech
situation.43
39
Ibid., p. 65.
40
Forester, J., supra.
41
Kemp, R., “Planning, Public Hearings, and the Politics of Discourse”, supra.
42
O’Riordan, T., Kemp, R., and Purdue, M., supra.
43
Palerm, J. R., supra.
145
As Webler pointed out however, previous studies had emphasised the legitimacy
of decision-making and therefore focussed on the fairness the rules of discourse
with less consideration given to the extent to which these rules promoted
competence.44 An emphasis on fairness in discourse could facilitate unforced
consensus, but without more, could also leave participants to examine
knowledge issues that went beyond their competence, leading to lengthy
discourses and outcomes with varying substantive quality depending on the
competence of the participants in each particular discourse.45 Webler therefore
proposed evaluating the fairness and competence components of the ideal
speech situation separately so as to redress the imbalance in emphasis.46
I describe below, the fairness and competence criteria for assessing the quality
of public participation in environmental decision-making. These criteria are
primarily drawn from those proposed by Webler, but have been modified for
greater emphasis on participation for contribution to sustainable development.
Fair Public Participation
According to Webler, a fair procedure was one in which everyone who was
potentially affected by a proposed decision has an equal chance to be present or
represented at the deliberation. They ought to have an equal opportunity to put
their concerns on the agenda and to approve or propose rules for their
discourse, to select a moderator or facilitator who will enforce these rules, and to
make validity claims and to challenge the claims of others.47
Attendance
Webler defineds the potentially affected population who should have a legitimate
right to participate in environmental decision-making as the “individuals or
groups whose interests or values may be affected by the proposed decision
44
45
Ibid., pp. 55-6.
46
Ibid., pp. 53-4.
47
Webler, T., supra, pp. 79-81.
146
action”.48 This view is consistent with the requirement for broad-based
participation in environmental decision-making. Interests alone cannot constitute
an exhaustive entry criterion for public participation in environmental decision-
making with a view to contributing to sustainable development. Given the
uncertain environmental impacts of many modern activities, it is often difficult to
determine at the outset whether a person’s interests will not be affected by a
proposed activity. Furthermore, as the RCEP pointed out, participation on the
basis of affected interests alone would lead to a focus on negotiation with the
aim of reaching an expedient compromise.49 Steele similarly argued that whilst
participation amongst those affected only might suffice for the purpose of
legitimacy, it might not be adequate if the aim of public participation was to
improve the quality of the decision; interested parties contributed breadth of
reflection to complement the “situated knowledge” of affected parties.50 In order
to ensure greater intra-generational and inter-generational equity in access to
natural resources, broad-based participation had to be encouraged.
The potential invitees for would have to be defined by objective and subjective
criteria.51 “Objective” procedures such as risk analysis, social impact analysis,
and value tree analysis could reveal the physical, social, economic, or value
impacts.52 In the case of environmental decision-making, an environmental
impact analysis would also be invaluable in exposing impacts. As objective
criteria were not infallible, subjective criteria for participation would still be
necessary so that people could participate if they decided their values or
interests were affected by a proposed decision.53
Giving affected and interested parties the right to participate in environmental

decision-making may be adequate for legitimising the decision, but if broad-
based public participation in environmental decision-making is to improve the
48
49
50
51
52
Ibid., loc. cit..
53
Ibid., p. 53.
147
quality of the decision, then as rightly recommended by Steele, it was not
enough merely to open the doors to the affected and interested parties,
strategies needed to be adopted for getting them through the door.54 Thus,
active steps could have to be taken to encourage (not just permit) participation,
including greater publicity of the proposed decision and opportunities for
participation, and more accessible participation modes, times and venues.
Agenda and Rules
The agenda and rules of the discourse established the framework within which
discussion to take place. The agenda defined the issues for discussion, and
when and how much time to discuss any particular issue. The rules of the
discourse shaped the way deliberation is to be conducted – the management of
interruptions and disruptions, resolution of stalemates, maintenance of decorum,
etc. Control over either or both could confer decisive control over the outcome of
the discourse. Fairness therefore required that all participants have an equal
opportunity to participate in the process of setting the agenda or establishing the
rules.55
In a sense, the question of agenda and the opportunity to participate are

mutually related. Participants shape the issues, but at the same time, the way a
problem is characterised influences the definition of the affected population. The
agenda and the affected population may therefore have to be refined through
successive iterative cycles of population definition and agenda setting in turn.
Facilitator/Moderator
Aside from having the opportunity to select the mode and rules of participation,
participants also had to agree on a means to enforce the agenda and rules of
discourse. He would have to be someone the participants could agree was
independent and impartial.56 The facilitator/moderator’s role was to interpret and
enforce the rules of discourse and to ensure that the conditions for ideal speech
54
55
Ibid., p. 62.
56
Ibid., p. 64.
148
obtained as far as possible. This could include the curtailment of filibustering or
the reduction of disparities in the abilities and resources of participants by
drawing out the views of less dominant or vocal participants, or assisting
inadequately resourced or supported participants in gathering or presentation of
technically complex information. Finally, the facilitator or moderator could assist
in the reporting or recording of the decision that emerges at the end of the
deliberation.
The Environment Agency endorses similar criteria for fairness. It noted that
fairness was about opportunities for influencing the process and that
communication was fair to the extent that opportunities exist for the expression
of legitimate personal interests and contribution to the development of an
agreement, in particular
the opportunities for everyone to suggest the issues to be discussed; the means by which
disagreement over the agenda and rules can be resolved; opportunities for individuals to
suggest a facilitator; the identification of all individuals and groups that could be affected
by the decision; and opportunities for everyone to have an equal chance to participate, to
57
express views and to challenge information and claims.
Competent Public Participation
As Webler pointed out, fairness in discourse rules merely sought to neutralise

power relations by opening up opportunities to make and redeem validity
claims.58 While it was theoretically possible for fair participation rules alone to
eventually lead communicatively competent participants to a consensus that
contributed to sustainable development, it was desirable for practical reasons to
introduce rules to facilitate competent discussion.59
By competence, Webler meant the quality of rules leading to the “construction of

the best possible understandings and agreements given what is reasonably
57
Environment Agency, Consensus Building for Sustainable Development, supra, para. 6.3.
58
59
Ibid., p. 58.
149
knowable at the time”.60 Such rules increased efficiency in discourse; limited the
possibility for strategic action; provided consistency of outcomes across separate
discourses; managed the problem of unlimited demand for justification of validity
claims; and satisfied the need for closure within a fixed period of time for
discourse.61 The Environment Agency also endorsed the need for rules for
competent public discourse, i.e., the ability of a process to provide all
participants with the procedural tools and knowledge needed to make the best
possible decision.62
Following Habermas, Webler identified four types of discourses, each with its
own rules to ensure competence: explicative discourse, relating to the
comprehensibility of assertions; theoretical discourse, relating to truths of the
objectified world; practical discourse, relating to normative choices; and
therapeutic discourse, relating to the subjective experiences of the participants.
For the purpose of my thesis, I will only be focussing on two of the four types of
discourses, namely theoretical discourse and practical discourse.63 It should be
pointed out that these different types of discourse are separately considered only
for the purpose of analysis. In practice, they are inter-related, as statements of
participants will contain a combination of validity claims requiring a simultaneous
engagement in the various types of discourse. Competence in any one type of
discourse must be matched by competence in the other types of discourse; the
lack of competence in one type of discourse will undermine any perceived
competence in other types of discourse.
The rules for each type of discourse need to ensure that participants have
access to the knowledge and interpretations for choosing and implementing the
most competent procedures for resolving disagreement about knowledge and
interpretation. The reliability and accuracy of these procedures would have been
tried and proven over time,64 but are not intended to be entrenched. Rather,
60
Ibid., loc. cit..
61
Ibid., loc. cit..
62
Environment Agency, Consensus Building for Sustainable Development, supra, para. 6.3.
63
See Chapter 8 for my reasons for focussing on the theoretical discourse and practical
discourse.
64
150
they are to be used as a starting point for discourse; where better procedures
emerge, or where they are found to have the effect of systematically
disadvantaging some participants, they may be superseded or modified.65
Theoretical Discourse
According to Webler, theoretical discourse related to the ‘facts’ about the

external world. These facts were gathered through scientific methodologies as
well as through personal anecdotal experience. They included not only the
observed data, but also its analysis and interpretation in terms of ‘what
mattered’,66 which in our case, is the contribution to sustainable development.
Within the framework of contributing to sustainable development, theoretical

discourse on the authorisation of radioactive waste disposal would necessarily
focus on the needs intended to be met by the proposed activity that necessitates
the production of radioactive wastes, alternative means for meeting such needs
and alternative means of disposal of the radioactive wastes, the socio-economic
and environmental baselines, as well as the positive and negative impacts of the
activity including disposal of radioactive wastes as well as of the alternatives.
Rules for competent theoretical discourse may require participants to resort to

pre-existing knowledge and personal experiences and, where these are
inconclusive, to seek the assistance of experts in making evidence and
interpretations available to all participants.67 All available relevant information
should be accessible to all participants. The availability and accessibility of such
information must not merely relate to the raw data. Such data needs to be
collated and ‘translated’ into a form whereby its significance and implications can
be understood by lay participants. Where information is withheld or effectively
inaccessible to certain individuals, participants start off with an imbalance in the
information available to them, with some participants in a stronger position than
65
66
67
151
others because of a privileged access to information that other participants do
not have the opportunity to access or verify independently.
As I pointed out in Chapter 4, however, knowledge about the objective world is

the result of inter-subjective human enterprise, and necessarily bears the
hallmarks of the professional and personal values of those who contribute to it.
Participants should be able to seek the advice of experts where there is
agreement amongst participants that they collectively lack the necessary
specialist knowledge themselves, but since experts may be tainted by conscious
and subconscious personal and institutional bias, it is important that there is a
consensus on the choice of experts to be consulted or at least a wide range of
expert opinion to provide an impartial view of the truth, so that no one
perspective systematically dominates other perspectives. Where such
consensus is not forthcoming, it may be necessary to ensure that all participants
have access to resources to consult their own experts and for such expert views
to be included in the discourse.68 Reliance on the authoritative assertion of
expertise on the basis of credentials can no longer be accepted as a competent
mode of evaluating conflicting theoretical claims since such reliance ultimately
rests on standing in the expert community rather than the force of the better
argument. For the same reason, participants should be entitled to contribute
personal anecdotal knowledge; such knowledge, if supported by sound
reasoning, is not necessarily inferior or invalid even though it may not conform to
the conventions of the scientific establishment.
In the last resort, where reasonable agreement is impossible, not least because
decision-making must take place within time and resource constraints, the
inconclusiveness of the ‘facts’ may have to be accepted. This does not
necessarily reflect negatively on the competence of the discourse, rather it may
be a realistic acknowledgement that knowledge for the purposes of
environmental decision-making can seldom be conclusive. Ultimately, conflicting
claims about the objective world cannot be evaluated using only competent
theoretical discourse; practical discourse will be necessary for the exercise of
68
Ibid., p. 82, Appendix, para. E1-2.
152
evidentiary judgement to bridge the gap between incomplete or uncertain
knowledge and final decision.
Practical Discourse
Webler described practical discourse as involving “disputes over claims about

the appropriateness of social relations (norms)”.69 In contrast with the concern
over the positive in theoretical discourse, a practical discourse was concerned
with normative choices; what we should do, what our ends should be, and what
sort of community we should become. A practical discourse would naturally be
intimately connected with a theoretical discourse about what is factually possible
and the factual consequences of our normative choices, but the dominant aspect
of a practical discourse would be an examination of the appropriate values that
were applicable to the decision at hand.
Within the framework of sustainable development, practical discourse would

necessarily focus on the ethical value judgements of separating the basic needs
from the aspirations. Identifying a need as basic rather than aspirational implied
an acceptance that in terms of access to natural resources, meeting the need
took precedence over the satisfaction of aspirational needs. More specifically, in
respect of the authorisation of radioactive wastes disposal, key ethical
judgements would include a consideration of the importance of the needs to be
served by the activity for which the production and consequent disposal of
radioactive waste is unavoidable, taking into account the positive and negative
impacts of such activity and disposal on other present needs and on the state of
the environment. Since our needs are not always all-or-nothing needs.
Appropriate ethical judgement would be needed for the proper and just balance
to be struck between competing needs.
Practical discourse also has an important role in the articulation of evidentiary

judgements when the evidence for theoretical discourse is inconclusive. In the
context of sustainable development, competence in the rules for practical
discourse would favour the application of the precautionary principle. According
69
Ibid., p. 69.
153
to this principle, absolute scientific certainty of a threat of serious or irreversible
damage to the environment is unnecessary for the purpose of taking preventive
action to avert such a potential threat.70
As I noted in Chapter 4, impartial value judgements emerge when participants

“debate, discuss, and challenge” one another’s ethical judgements, using
generalised principles that other participants cannot reasonably reject. The
exercise of ethical and evidentiary value judgments in environmental decision-
making is more likely to be impartial and in the common interest when the
judgements are the product of deliberation amongst participants rather than the
monological reasoning of a like-minded political party leadership. Competent
rules for practical discourse will also need to provide a means for selecting from
conflicting normative claims. As Webler pointed out, a basic requirement of
normative choice was that it had to be coherent and consistent with the other
normative choices that we made in our lives.71
Where normative choices were in conflict, there may be a need to take practical
discourse a step further by reviewing the values underlying these conflicting
choices, or to engage in theoretical discourse about the validity of the underlying
factual premises on which our values or normative choices are based. Yet, while
convergence in value judgements may emerge after iterations of deliberation,
and over a period of time, it may be initially be unrealistic to expect a timely
consensus. One way to achieve closure competently may be through a vote on
the issues at the end of the discourse, or through compromise on rationally
justifiable grounds. At the very least, this is more likely to achieve a competent
closure in arriving at impartial value judgement in the common interest than
expediently leaving all value judgements to a political elite.
The Inherent Limitations of Public Participation
While up to a point, fair and competent public participation are mutually

reinforcing, the two can also be in conflict, particularly in relation to decision-
70
See Chapter 4 for the relevance of public participation to the application of the precautionary
principle.
71
154
making on a large-scale. The WCED suggested that public deliberation was
more suited for local community based environmental decision-making. Indeed,
this was one reason they advocated decentralisation of resource management,
promotion of local initiatives, the empowerment of local organisations, and the
strengthening of local democracy.72 However, environmental decision-making at
a national, regional, or even international scale is sometimes inevitable. At such
a large scale, the conflict between opportunities for attendance and opportunities
for public deliberation increases. Beyond an optimum point, as number of
participants increases, opportunities for meaningful discourse diminishes. The
more people take part in meetings, the longer and the more meetings it takes to
make reach an uncoerced decision.73 Thus, for large-scale projects, the WCED
recommended public participation in the form of public inquiries and hearings on
the development and environment impacts in order to draw the decision-maker’s
attention to different points of view. Depending on the gravity of environmental
consequences, public scrutiny and public approval could even be necessary.74
Barber suggested that technology could provide the way forward for public
deliberation on a large scale. He argued that scale was in part a communication
problem, and that electronic enhancement of communication, e.g., television,
town meetings using cable television, and computers offered new modes for
large-scale communication. He conceded however, that these new modes
sacrificed intimacy, diminished the sense of face-to-face confrontation, and
increased the dangers of elite manipulation.75
Secondly, there is no guarantee that participants will arrive at an uncoerced

consensus on the basis of rational argument, not least because of the
environmental decision-making can be extremely complex and there may not
always be a unique path to sustainable development. While it might be
reasonable to expect a convergence in the values and knowledge of participants,
72
73
Goodin, R. E., Green Political Theory, supra, pp. 140-1. See also Rossi. J., “Participation Run
Amok: the Costs of Mass Participation for Deliberative Agency Decision Making” (1997)
Northwestern University Law Review 92: 173.
74
World Commission on Environment and Development, supra, pp. 63-4
75
Barber, B. R., supra, pp. 273-8.
155
it is by no means certain that rational discourse this convergence will always
lead to a determinate conclusion. Ultimately, failing consensus, participants will
have to reach closure through compromise on terms that are themselves
justifiable on discursive terms.76
The use of the ideal speech situation to attain inter-generational justice poses
further difficulty since future generations have no ”communicative competence”;
we are not able to enter into any discourse with future generations. Where
dialogical deliberation proves impossible, it may be ultimately necessary to resort
to some qualified monological ethical judgement.
Some environmental political theorists have sought to ‘save’ Habermas’ ideal

speech situation by allowing advocates to participate on behalf of those who
cannot communicate, or by extending the notion of communication itself. For
example, Dobson advocated the election of representatives for future
generations by a proxy electorate made up those from the present generation
who argue in favour of environmental sustainability.77 Dryzek78 and Goodin79
argued respectively that the interests of non-participants in the dialogue, e.g.,
non-humans and future generations, had to be accommodated within the
discursive dialogue, through the reception and interpretation of signals from the
natural world or through a process of putting oneself into the situation of others.
Less true to the spirit of the ideal speech situation, some writers advocated the
imposition of constraints on the ideal speech. Christoff argued that since “fish
cannot raise their fins to vote nor the unborn express their potential desires”,
existing humans had to “assume responsibility for future humans and other
species and represent their rights and potential choices according to the duties
of environmental stewardship” in deliberative democratic processes, constrained
76
White, S. K., supra, pp. 76-7.
77
Dobson, A., “Representative Democracy and the Environment”, in Lafferty, W. M., and
Meadowcroft, J., (eds.), Democracy and the Environment: Problems and Prospects
(Cheltenham: Edward Elgar, 1996), p. 124.
78
Dryzek, J., “Green Reason: Communicative Ethics for the Biosphere” (1990) Environmental
Ethics 12: 195; and Goodin, R. E., “Political and Ecological Communication”, in Mathews, F.,
(ed.), Ecology and Democracy (London: Frank Cass, 1996), p. 13, at 15 and 24.
79
Goodin, R. E., “Enfranchising the Earth, and its Alternative” (1996) Political Studies 44(5): 835.
156
by universal ecological values or principles.80 Eckersley echoed the view that
ecological value constraints were necessary. She argued that the ideal speech
situation arbitrarily facilitated domination over the communicatively incompetent.
As such, the rules of the discourse had to be modified to include procedural
norms such as the precautionary principle to allow the communicatively
incompetent to be systematically represented rather than leaving it to the
“uncertain inclinations of participants in the dialogue”.81 She conceded however,
that ultimately it would be up to dialogue participants to interpret such norms.
Fair and Competent Public Participation as an Approximate

Indicator of Substantive Quality of Environmental Decision-
making
As long as an environmental decision does not directly deprive someone of

obvious basic needs, or cause clear-cut ecological harm, it is difficult to evaluate
whether or not an environmental decision is in fact contributing to sustainable
development. Evaluation is particularly difficult while the decision is being
taken, or in the period immediately following the decision or its implementation.
The introduction of procedural criteria to guide the environmental decision-
making process and as a tentative means for evaluating the substantive quality
of its outcome is therefore a welcome supplementary evaluation tool.
Webler’s framework offers procedural criteria for evaluating the fairness and
competence of public participation in environmental decision-making. An
environmental decision that incorporates fair and competent public participation
in its decision-making process is likely to be one informed by just values and
reliable knowledge and therefore one more likely to contribute to sustainable
development. Where on the other hand, public participation is suppressed or
distorted; it is more likely that the environmental decision that ensues is
80
Christoff, P., “Ecological Citizens and Ecologically Guided Democracy” in Doherty, B., and de
Geus, M., (eds.), supra, p. 151, at 158-9, and 163-4.
81
Eckersley, R., “Green Justice, the State and Democracy”, Paper presented at Conference
st
entitled Environmental Justice: Global Ethics for the 21 Century, October 1-3, 1997. Online at
http://www.arbld.unimelb.edu.au/envjust/papers/allpapers/eckersley/home.htm (as at 17 April
2002). See also Barry, J., Rethinking Green Politics (London: SAGE Publications, 1999), p. 225.
157
dominated by the narrow self-interests of the politically and economically
privileged.
The procedural criteria fair and competent public participation do not guarantee
any particular desired outcome, let alone sustainable development; procedural
criteria can only provide indicators for its expected performance in outcomes.82
The criteria are only intended to represent an ideal model against which existing
procedures can be critiqued. The fact that the ideal may never be achieved in
the real world where constraints abound is not a reason to abandon the ideal;
ideals exist precisely to provide directions for further progress.
There is also no denying that there are inherent and practical limitations on the
extent to which public participation can be fair and competent. This is
particularly true in respect of environmental decisions with large-scale or long-
term effects. Nevertheless, the introduction of fair and competent public
participation in environmental decision-making, even in an imperfect form,
remains an invaluable procedural tool for the contribution of sustainable
development in environmental decision-making. Furthermore, the fact that the
ideal speech situation cannot be fully achieved in practice does not mean it
cannot be used as a basis for critical evaluation of existing law and practice and
as a constructive guide for improvement in these areas.
Having introduced the background to the case studies, and the criteria for
evaluating the fairness and competence of the law and Environment Agency
practice on public participation, I now turn to the case studies proper.
82
158
Chapter 7: The Fairness of Public Participation in the
Authorisation of Radioactive Waste Disposal
I begin my analysis of the law and Environment Agency practice relating to

public participation in the authorisation of radioactive waste disposal in this
chapter with an assessment of the fairness of the law and practice. I consider in
turn, whether the legislation for the regulation of radioactive waste disposal,
common law, human rights legislation, the Aarhus Convention, and Environment
Agency practice meet each of the fairness criteria set out in the previous
chapter, namely fairness in the selection of participants, selection of the agenda
and rules for participation, and appointment of a facilitator/moderator.
(A) Attendance
Radioactive Substances Act 1993
Under the 1993 Act, as amended by the 1995 Act and the Food Standards Act
1999,83 the Agency is required to consult the Food and Standards Agency84 and
the Health and Safety Executive before deciding whether to grant an
authorisation to dispose radioactive waste under s. 13 of the 1993 Act, or a
variation of the authorisation under s. 17 of the 1993 Act.85 The Agency must
send a copy of the application to the FSA and each local authority in whose area
an applicant for authorisation proposes to dispose radioactive waste.86 In
addition, where the radioactive wastes to be disposed are on or from a nuclear
site, the Agency must before granting an authorisation, consult with “such local
authorities, relevant water bodies or other public or local authorities as appear
appropriate to be consulted”.87 There are no requirements to consult members
of the public as such.88
83
84
Hereinafter “FSA”.
85
ss. 16(4A) and 17(2A), as amended by 1999 Act, s. 18 and Sch. 3, para. 21.
86
ss. 16(4A)(b) and 16(6).
87
s. 16(5). There does not seem to be a requirement to consult these local authorities in the
case of a variation of these authorisations, only a duty to send a copy of the notice of variation to
159
While there is no direct statutory requirement for the Environment Agency to
allow public participation in its environmental decision-making under the 1993
Act, it is required pursuant to statutory guidance to “strive to develop a close and
responsive relationship with the public…”.89 The Agency is therefore arguably
under an indirect statutory obligation to consider public consultation of its
proposed decisions as part of its efforts to develop a close and responsive
relationship with the public.
Local Inquiry
There is also a duty on the part of the Secretary of State to consider whether to
hold a local inquiry under the 1993 Act. Under s. 24(2) of the Act, the Secretary
of State may call-in an application for authorisation to discharge radioactive
waste, and in the event of call-in, may cause a local inquiry to be held in respect
of the application.90 This power is in addition to the Secretary’s general power
under s. 53 of the 1995 Act to cause an inquiry to be held if it appears expedient
to her to do so in respect of the Environment Agency’s functions or the ministers’
functions in relation to the Agency.
The discretion to hold a local inquiry is broad, but must be exercised to further
the purpose for which it was conferred. According to the Committee on
Administrative Tribunals and Inquiries,
The intention of the legislature in providing for an inquiry or hearing in certain
them after the fact (see s. 17(3(b)).

88
Indeed, an express statutory provision to consult certain parties has been construed as
impliedly excluding a duty to consult other parties (see for example, Bates v . Lord Hailsham of
St. Marylebone [1972] 3 All ER 1019, 1024).
89
supra, Part I, para. 9(vii).
90
Ibid., s. 24(4A) read with 1999 Act, s. 26. The function of the Secretary of State in this regard
was exercisable by the Secretary of State of the Environment and the Regions and the Minister
st
of Agriculture, Fisheries and Food. After 1 April 2000, the function ceased to be exercisable by
the Minster of Agriculture, Fisheries and Food. The functions of the Secretary of State are now
exercisable by the Secretary of State for the Environment, Food and Rural Affairs and the
Secretary of State for Health.
160
circumstances appears to be twofold: to ensure that the interests of the citizen closely
affected should be protected by the grant to them of a statutory right to be heard in support
of their objections and to ensure that the Minister should be better informed about the facts
91
of the case.
Lord Diplock expressed a similar view in Bushell & anor. v. Secretary of State for
the Environment:
The purpose of the inquiry is to provide the minister with as much information about those
objections as will ensure that in reaching his decision he will have weighed the harm to
local interests and private persons who may be adversely affected by the scheme against
the public benefit which the scheme is likely to achieve and will not have failed to take into
92
consideration any matters which he ought to have taken into consideration.
In R. v. Secretary of State for the Environment & Ors., ex p. Greenpeace &

anor.,93 the Secretary of State for the Environment’s refusal to exercise his
discretion under s. 24 of the 1993 Act to call-in applications by BNFL for
authorisations to discharge radioactive wastes or to cause a local inquiry to be
held was challenged.
Potts J. held that provided the Secretary of State had applied his mind genuinely
and rationally to the issue of whether or not to hold a public inquiry, his decision
could not be impugned.94 Quoting with approval the dictum of Webster J. in
Binney & Anscomb v. Secretary of State for the Environment & Secretary of
State for Transport,95 he agreed that the Secretary of State properly directing
himself and acting reasonably could not be satisfied that a public inquiry was
unnecessary unless he was satisfied of at least two things, namely that
without a public inquiry he can properly weigh any two or more conflicting issues, and
secondly that those with the right to make representations can have their representations
91
Report of the Committee on Administrative Tribunals and Inquiries (Cmnd. 218) (London:
HMSO, 1957), para. 269. Hereinafter “Franks Committee Report”.
92
[1981] AC 75, 94. Hereinafter “Bushell case”.
93
[1994] 4 All ER 352. Hereinafter “Greenpeace case”.
94
Ibid., p. 381.
95
[1984] JPL 871. Hereinafter “Binney case”
161
96
properly taken into account.
On the facts of the Greenpeace case, Potts J. surprisingly held that the above
criteria had been satisfied and the Secretary of State was entitled to consider a
local inquiry unnecessary given the consultations that had already taken place
and the information available to him.97
As Webster J. had pointed out in the Binney case, in matters of great public
controversy, no reasonable minister could be satisfied that he could weigh the
conflicting interests without the benefit of a public inquiry at which the groups in
conflict could confront each other, and at which witnesses and expert witnesses
could be heard and cross-examined.98
The only consultations carried out in the Greenpeace case seemed to be by

correspondence. Neither was there any indication that those who had
responded to the public consultation exercise or written to the Ministers
themselves had the opportunity to challenge the validity of each other’s
statements or the expert evidence. It is therefore not clear how Potts J. could
have concluded that the Secretary of State was entitled to take the view that the
large amount of information and argument available to them were adequate for
informing themselves of the weight and substance of the concerns of all
interested parties that information and argument.99
Although members of the public can expect that in the absence of prior public
consultation, a local inquiry relating to a proposed authorisation of radioactive
waste disposal is likely to be held, the mere fact that one is held does not ipso
facto confer on any particular individual a right to participate at the inquiry. The
96
Supra, p. 379.
97
Ibid., p. 381.
98
Supra, p. 874.
99
It might be possible to explain his conclusion if one takes into account the fact that many of the
issues relating to the disposal of radioactive wastes arising from THORP had already been
considered in a public inquiry conducted by Sir Parker Roger in 1977 to consider the application
for planning permission for the THORP. Potts J. referred to this public inquiry in his judgement
(Supra, pp. 360-1), but there is no indication that he thought that this was relevant to the issue of
whether the Secretary of State’s decision not to hold a local inquiry was irrational.
162
individual right to participate at an inquiry must therefore be independently
founded under statute or common law.
Common Law
Turning to common law, the judicial principle of procedural fairness requires,

inter alia, that in appropriate circumstances, individuals be given the opportunity
to be heard in decisions that directly affect their legitimate interests unless
statute expressly100 or by necessary implication provides otherwise.101 Lord
Bridge, for example, declared that
it is well established that when a statute has conferred on any body the power to make
decisions affecting individuals, the courts will not only require the procedure prescribed
by the statute to be followed, but will readily imply so much and no more to be introduced
102
by way of additional procedural safeguards as will ensure the attainment of fairness.
Furthermore, in contrast with the court’s generally restrained approach to

supervision of administrative discretion, the court is the final arbiter of what
procedural fairness requires in a specific context.103 Thus, while a minister’s
decision to decline to hold a local inquiry under the 1993 Act can only
successfully challenged in court if the decision is Wednesbury unreasonable; it is
for the court to exercise its own judgement as to whether the procedure at such
inquiry meets the requirements of procedural fairness.
Historically, the principle of natural justice served to protect procedurally certain

legally recognised rights, e.g., life, liberty and property, and interests akin thereto
from being adversely threatened in judicial or quasi-judicial proceedings. With
the increase in the regulatory functions of the state in the nineteenth century, the
100
E.g., Town and Country Planning Act 1990, s. 35B(4) and Highways Act 1980, s. 258.
101
I leave aside the rule against bias for now.
102
Lloyd v. McMahon [1987] AC 625, 702-3. See also Cooper v. Wandsworth Board of Works
(1863) 14 CB (NS) 180, 195, where Byles J. held that “although there are no positive words in a
statute, requiring that the party shall be heard, yet the justice of the common law will supply the
omission of the legislature”.
103
R. v. Panel of Take-overs and Mergers, ex p. Guinness plc [1989] 1 All ER 509, 532.
163
courts began to impose on government departments and ad hoc tribunals that
‘adjudicated’ on the rights and liberties of individuals,104 a duty to act judicially
according to court-like procedures. The superadded requirement of adjudication
or quasi-adjudication has been officially put to rest,105 resulting in a widening of
the scope of application of the principle. At about the same time, the duty to
observe natural justice evolved into a more general duty to act fairly.106 The
emergence of this more general duty has theoretically given the courts more
flexibility in tailoring the standards of procedural fairness to suit the
circumstances for each case, but has led to greater uncertainty in the
requirements of procedural fairness from case to case.
Although it has been said that the duty to act fairly applies whenever interests
are at stake,107 and that any official who decides anything has a duty to act
fairly,108 the application of this principle is far more restricted in reality. Clearly,
where property rights or personal liberty are threatened, there is a prima facie
right to be heard by the decision-maker. Procedural fairness can also be
applicable when certain interests are at stake. Thus, in addition to having a
statutory right to be heard in an appeal against an adverse decision by the
Environment Agency,109 AWE plc would probably have a right under common
law to be heard on its application before it is denied an authorisation to dispose
radioactive wastes or before being issued with an authorisation that is subject to
adverse limitations and conditions which could be construed as jeopardising its
economic interests in operating a nuclear site. Members of the public who can
show a direct link between the proposed decision and their economic interests,
health, enjoyment of property, or a loss of amenity, e.g., fishing in the rivers
where the discharges are to take place may be similarly entitled to an
opportunity to be heard, although the content of such an entitlement may vary
with the court’s perception of the importance of the interest at stake.
104
Liberally interpreted to include instances where important privileges were at stake.
105
Ridge v. Baldwin [1964] AC 40.
106
This general duty made its initial appearance in the judgement of Lord Parker CJ in Re H. K.
(An Infant) [1967] 2 QB 617, 30. See also O’Reilly v. Mackman [1983] 2 AC 237, 275, where
Lord Diplock said that the rules of natural justice “mean no more than the duty to act fairly”.
107
Per Lord Diplock, Bushell case, supra, p. 95.
108
Per Lord Loreburn, Board of Education v. Rice [1911] AC 179, 182.
109
1993 Act, s. 26.
164
There is weak and indirect authority to support the proposition that concern
about the potential harm arising from the discharge of radioactivity may give rise
to a sufficient interest to warrant a right to be heard, at least insofar as well-
resourced environmental groups are concerned.110 In R. v. Her Majesty’s
Inspector of Pollution & anor., ex p. Greenpeace Ltd. (No. 2),111 Greenpeace
claimed judicial review of a decision by HMIP to approve BNFL’s application for
a variation of its existing authorisations to enable it to test its new THORP. In
considering whether Greenpeace had established a sufficient interest for the
purpose of standing under s. 31(3) of the Supreme Court Act 1981, Otton J. took
into consideration the fact that Greenpeace
is a entirely responsible and respected body with a genuine concern for the environment.
That concern naturally leads to a bona fide interest in the activities carried out by BNFL at
Sellafield and in particular the discharge and disposal of radioactive waste from its
112
premises and to which the respondents’ decision to vary relates.
The court also took into account the fact that 2500 Greenpeace supporters came
from the Cumbria region and that he could not ignore the fact that those
supporters were “inevitably concerned about (and have a genuine perception
that there is) a danger to their health and safety even from testing”.113
While the test of sufficiency of an interest for the purposes of standing in a claim
for judicial review is not identical to that for the purpose of triggering an
entitlement to procedural fairness in administrative decision-making, there is
arguably some overlap between the two. It has even been suggested that where
an applicant has been granted permission to proceed with a claim for judicial
review, it may be assumed that the impact of the decision is sufficiently serious
to qualify as adversely affecting his interests to warrant a right to be heard on the
decision.114 Whatever the merits of such an approach, it does not appear to
110
Greenpeace (No. 2) case, infra, p. 350.
111
[1994] 4 All ER 329. Hereinafter “Greenpeace (No. 2) case”.
112
Supra, p. 350.
113
Ibid., loc. cit.. Emphasis mine.
114
Woolf, H., Jowell, J., and Le Seur, A. P., De Smith, Woolf and Jowell’s Principles of Judicial
Review (London: Sweet & Maxwell, 1999), p. 290, fn. 66.
165
reflect the current position. As pointed out by Craig, standing to claim judicial
review is and should be wider than the right to be consulted in administrative
proceedings; there may be instances where it may be necessary to allow, in the
public interest, a member of the public to challenge the legality of a decision
without necessarily entitling him to be consulted when the decision was made.115
The case for an entitlement to be heard in respect of environmental decisions on

the grounds that it may adversely affect the interests of future generations is
even weaker since only the person who is potentially affected has a right to be
heard before the decision is made. Any concern for future generations is likely
to have to be couched in terms of concern about the effect of the decision on
self-interest to warrant an entitlement to be heard.
Arguing for a right to be heard during environmental decision-making irrespective

of any potential effect on one’s interests has arguably been made easier since
Lord Hoffman’s acknowledgement in Berkeley v. Secretary of State for the
Environment & Ors. that the citizen has a right during an environmental impact
assessment to an inclusive and democratic procedure in which the public,
however misguided or wrongheaded its views, should be given an opportunity to
express its opinion on the environmental issues.116 While Lord Hoffman’s
comments, strictly construed, applies only to environmental decisions to which
the environmental impact assessment regime applies, they may represent a
gradual judicial acceptance that irrespective of whether their personal or property
115 th
Craig, P. P., Administrative Law (4 edition) (London: Sweet and Maxwell, 1999), p. 716.
116
[2000] 3 WLR 420, 430. Hereinafter “Berkeley case”. It seems that Lord Hoffman very much
had in mind the contribution of public participation to the legitimacy of the decision rather than its
contribution to more competent environmental decisions. Contra Steele’s reading of the case
where she argues that what Lord Hoffman probable meant was that the public has a right to be
involved regardless of whether the decision-maker believes that the citizen will be able to add
anything of value (See Steele, J., supra, p. 420). This dicta in this case may be contrasted with
that of Brooke LJ in R.v Durham County Council & ors, ex p. Huddleston [2000] 1 WLR 1484,
para. 38, to the effect that one of the aims of the environmental impact assessment (and for the
State to make certain information available) was to give the public concerned the opportunity to
“express a properly informed opinion” before consent for the project was given or withheld,
suggesting a concern with the contribution of public participation to the substantive quality of
outcomes.
166
rights are at stake, members of the public have a general legitimate interest in
environmental issues that may entitle them to an opportunity to be included in
the deliberation of environmental decisions even if their private interest is not
affected by these decisions.
Finally, even assuming that an individual is not entitled at the outset to be

consulted in respect of a proposed environmental decision, the courts may still
recognise such an entitlement in common law if he can show that he has
legitimate expectations to be consulted on the basis of general or particular
representations or the existing practice of the decision-maker.117 Therefore, to
the extent that an argument can be made out that it has been the practice or
declared policy of the Environment Agency,118 or its predecessor, HMIP,119 to
consult the public on proposed decisions to authorise the discharge of
radioactive wastes, a member of the public could claim a legitimate expectation
to be consulted for this reason.
European Convention for the Protection of Human Rights and

Fundamental Freedoms
The entitlement to be heard at common law is in some ways reinforced by the

right to a fair hearing under Article 6(1) of the European Convention on Human
Rights and Fundamental Freedoms,120 now part of domestic English law with the
coming into force of the 1998 Act. This Article provides that
117
See for example, R. v. Secretary of State for Transport, ex p. London Borough of Richmond
upon Thames [1995] Env LR 390, 401.
118
See for example, Environment Agency, AWE Consultation Document, supra, para. 1.8.3.
119
For example, HMIP had consulted the public in respect of BNFL’s application for new
authorisations in respect of the Sellafield nuclear site to take account of the review of their
existing operations and to include the proposed operation of THORP and the enhanced actinide
removal plant. See the Greenpeace (No. 2) case, supra, p. 334. Tromans and Fitzgerald also
suggest that HMIP followed a practice of allowing a period of public consultations on applications
for authorisation to dispose radioactive wastes (See Tromans, S., and Fitzgerald, J., The Law of
Nuclear Installations and Radioactive Substances (London: Sweet and Maxwell, 1997), pp. 238-
9.
167
In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law…
The reference to “civil rights and obligations” has been interpreted by the
European Court of Human Rights to include private (as opposed to public) rights
and obligations designated as such by domestic law;121 it also applies to
proceedings that are of a public law character if these proceedings are decisive
of civil rights and obligations.122 It has been held that the applicant for a licence
to carry out industrial activities would be having his civil rights and obligations
determined, and would therefore be entitled to a fair and public hearing.123 In
similar vein, the Court has also held that the Article applies to a decision to
revoke a person’s tipping licence.124
Third parties whose civil rights and obligations are determined by the grant of
licences are also entitled to procedural protection under Article 6(1). In Zander
v. Sweden,125 the Court found that the parties could arguably maintain that they
were entitled under Swedish law to protection against the water in their well-
being polluted as a result of the company’s activities on the tip.126 This right
directly concerned with the applicants’ ability to use the water in their well for
drinking purposes and was one facet of their civil right as owners of the land on
which it was situated.127 The licensing board and the third parties disagreed as
to whether the activities on the dump that were licensed by the board were likely
to cause pollution on the well and whether precautionary measures requested by
the third parties were unreasonable, and the outcome of this disagreement was
directly decisive of the third parties’ right to protection against pollution of their
120
Hereinafter “ECHR”.
121
Ringeisen v. Austria (No. 1) (1979-80) 1 EHRR 455, para. 94; and König v. Germany (No. 1)
(1979-80) 2 EHRR 170, paras. 94-5.
122
Ringeisen v. Austria (No. 1), ibid..
123
Benthem v. The Netherlands (1986) 8 EHRR 1, para. 36.
124
Fischer v. Austria (1995) 20 EHRR 349.
125
(1994) 18 EHRR 175. Hereinafter “Zander case”.
126
Ibid., para. 24.
127
Ibid., para. 27.
168
well.128 As such, the inability of third parties to challenge the decision of the
board to allow the licence holder to expand its dump activities was incompatible
with Article 6(1).129
Applying the reasoning in the Zander case, the European Commission of Human
Rights held in Greenpeace Schweiz & Ors. v. Switzerland130 that applicants who
were living within “Emergency Zone I” surrounding a nuclear power plant were
entitled under Swiss law to file objections to the contested decision, and
therefore entitled under Swiss law to protection against the effects of the nuclear
plant, particularly in relation to their civil right to use their property within
Emergency Zone I as proprietors and tenants.131 Applicants living elsewhere, on
the other hand, were not similarly protected under Swiss law. As such, while the
claims of applicants living within Emergency Zone 1 under Article 6(1) were
admissible, the claims of those living elsewhere were not.
The starting premise for the present regime for radiation protection is that
exposure to radioactivity, no matter how low the dose, raises the risk of cancer
and other hereditary defects in each individual in the exposed population. In the
UK, there does not appear to be any right to be free from all risk of harm arising
from exposure to man-made radiation - although a nuclear site licensee is under
a duty to secure that no ionising radiations emitted during the period of the
licensee’s responsibility from any waste discharged on or from the site cause
injury to any person or damage to any property of any person other than the
licensee,132 the English courts have rejected the argument that this confers a
right to be absolutely free from contamination or risk of harm per se arising from
ionising radiation.133 Neither is a person who may be exposed to radioactive
waste entitled under domestic law to be consulted prior to the authorisation of
the disposal.
128
Ibid., para. 25.
129
Ibid., para. 29.
130
(1997) 23 EHRR CD 116. Hereinafter “Greenpeace Schweiz case”.
131
Ibid., pp. 118-9.
132
Nuclear Installations Act 1965, s. 7(1).
133
Re Friends of the Earth [1988] JPL 93; and Merlin v. British Nuclear Fuels plc [1990] 2 QB
557, 572.
169
This absence of a substantive or procedural right to be free from risk of harm
poses difficulties for those claiming a right to a fair hearing where a proposed
decision imposes a low statistical probability of harm to each individual in a large
affected population. In Balmer-Schafroth & Ors. v. Switzerland,134 the applicants
owned or rented homes in villages that were between four and five kilometres
from a nuclear power station.135 The company operating the power station had
applied to the Swiss Federal Council for an extension of its operating licence and
for permission to increase its production.136 The applicants filed their objections,
supported by several expert opinions, arguing that the power station did not
meet current safety standards on account of serious and irremediable
construction defects and that, owing to its condition, the risk of an accident
occurring was greater than usual and posed a risk to their physical integrity.137
The Federal Council dismissed all objections as unfounded and extended the
operating licence and permitted the increase in production.138 The applicants
claimed that Article 6(1) of the ECHR had been breached because they had not
had access to a tribunal within the meaning of that provision and that the
procedure followed by the Federal Council had not been fair.139
The majority judgement of the European Court of Human Rights held that Article
6(1) of the ECHR was not violated in the circumstances. The right on which the
applicants relied in substance was the right to have their physical integrity
adequately protected from the use of nuclear energy.140 While this right was
recognised under Swiss law,141 the link between the Federal Council's decision
and the applicants' right to adequate protection of their physical integrity was too
tenuous and remote for Article 6(1) to be applicable. Regardless of the power
station’s failure to meet current safety standards, or the unusually greater risk,
the applicants had failed to show that “the operation of the power station
134
(1998) 25 EHRR 598. Hereinafter “Balmer-Schafroth case”.
135
Ibid., para. 7.
136
Ibid., para. 8.
137
Ibid., para. 9.
138
Ibid., para. 11.
139
Ibid., para. 20
140
Ibid., para. 33.
141
Ibid., para. 34.
170
exposed them personally to a danger that was not only serious but also specific
and, above all, imminent”.142 The effects on the population of the measures that
the Federal Council could have ordered to be taken in the instant case therefore
remained hypothetical; it had not been established with a sufficient degree of
probability that the outcome of the proceedings were directly decisive of the
applicants’ right.143
Ultimately, the majority judgement rested on the consideration that the

probability of the applicants’ individual substantive right under Swiss law being
affected was too low to attract the application of Article 6(1) of the ECHR. It was
this threshold level of probability rather than the principle per se that the
dissenting judges objected to when they pointed out that
[f]or Article 6 to be applicable, an applicant does not need to prove at the outset that a risk
exists or what its consequences are; it suffices if the dispute is genuine and serious and
there is a likelihood of risk and damage. It may suffice for finding a violation that there is
144
proof of a link and of the potential danger…
Nevertheless, the reasoning of the majority judgement in the Balmer-Schafroth

case has subsequently been confirmed and followed in Athanassoglou & Ors. v.
Switzerland,145 a case with virtually identical facts.
Just as in common law, participation in decision-making under Article 6(1) of the

ECHR is very much oriented towards the procedural protection of narrow self-
interest rather than common interest. Under Articles 33 and 34 of the ECHR,
only contracting Sates and “victims” can complain to the European Court of
Human Rights about alleged violations of the Convention. The Convention does
not preclude non-governmental groups from being “victims” of violations of the
Convention rights, but like all other “victims”, such groups have to establish that
its own rights have been violated; it is not enough to show that its members’
rights or its objects have been affected, let alone the rights of non-members or
those of future generations. This restriction prevented environmental groups
142
Ibid., para. 40.
143
Ibid., loc. cit..
144
Ibid., p. 618.
145
(2001) 31 EHRR 13, para. 55.
171
from successfully complaining of a breach of Article 6(1) in the Greenpeace
Schweiz case.146 In that case, the applicants were a number of associations and
individuals where the Commission held that the complaints of the environmental
groups were inadmissible because they had “failed to indicate whether they own,
or lease, property, within the vicinity of the nuclear power plant”.147
Aarhus Convention
The positions of the ‘unaffected’ but interested individual in common law and
under the ECHR in respect of participation in environmental decision-making
may be contrasted with that under the Aarhus Convention.
The right to participate in environmental decision-making is conferred on “the

public concerned”, defined in the Aarhus Convention as “the public affected or
likely to be affected by, or having an interest in, the environmental decision-
making…”.148 The definition clearly contemplates that members of the public
may be interested in without being affected by certain proposed environmental
decisions, and that both affected and interested members of public should be
entitled to notification of and participation in environmental decision-making.
Furthermore, environmental non-governmental groups are deemed to have an
interest in proposed environmental decisions and therefore like other interested
but nor necessarily affected members of the public, are entitled to participate in
the decision-making.
Even if Article 6 had been transposed to English law, it would only have been
applicable to the AWE, Magnox, and Sellafield Decisions if these had been
decisions on proposed activities and reviews of ongoing activities listed in Annex
I of the Convention; or if these decisions could have a significant effect on the
environment.149 It is plain that the discharge of radioactive waste per se is not
146
Supra.
147
Ibid., p. 1119.
148
Art. 2, para. 5.
149
Art. 6, paras. 1(a), 1(b) and 10.
172
an activity listed in Annex I of the Convention.150 Decisions whether to authorise
the disposal of radioactive wastes are not decisions about permitting nuclear
power stations or other nuclear reactors, including the dismantling or the
decommissioning of such power stations or reactors, or other nuclear
installations.151
Neither do these decisions relate to an activity where public participation is

provided for under an environmental impact procedure in accordance with
national legislation.152 Potts J. had held in the Greenpeace case that for the
purpose of considering whether EC Directive 85/337 was applicable, the
construction of THORP, its subsequent operation and consequent discharges
were considered a single project predating the Directive. As such, the
discharges did not separately require an environmental assessment even though
it took place after the Directive had come into force.153 Thus, for the purpose of
environmental impact assessment legislation, the discharge of radioactive
wastes arising from the various activities are considered part of the approval for
the construction154 or, as the case may be, decommissioning155 of the facilities
on which the activities are being carried out rather than to the authorisation of
the consequent discharge of radioactive wastes arising from the implementation
of these activities. Thus, the Aarhus Convention, when transposed into English
law, would still probably not apply to the authorisation of disposal of radioactive
waste arising from activities permitted prior to the coming into force of
environmental impact assessment legislation.
The proposed decisions would also not have significant effects on the
environment as long as discharges were kept within the authorised limits … or
so the Environment Agency has concluded. In the AWE Decision, its
assessment relied substantially on data extrapolated from the radiation
150
Art. 6, para. 1(a).
151
Annex I, para. 1.
152
Annex I, para. 20.
153
Supra, pp. 376-7.
154
For example, Town and Country Planning (Environmental Impact Assessment) (England and
Wales) Regulations 1999, SI 1999/293.
155
For example, Nuclear Reactors (Environmental Impact Assessment for Decommissioning)
Regulations 1999, SI1999/2892.
173
assessments using models developed by observing the health effects on human
populations exposed to radioactivity in different circumstances.156 At the same
time, the Agency acknowledged that “limited research has been carried out to
date in this field”.157 Subsequently in the Magnox Decision, the Environment
Agency continued to rely on these models despite acknowledging their
inadequacy, adding that it was in the process of developing a more systematic
approach to radiological protection for wildlife.158 On the basis of these
admittedly inadequate models and other limited studies, it concluded, despite
representations from English Nature to the contrary,159 that the radioactive and
non-radioactive discharges from the magnox power station sites and the
Berkeley Centre would not have any adverse effects on the integrity of
designated conservation sites.160 The Agency only finally abandoned the use of
the model when it came to the Sellafield Decision. Only then, did the Agency
decide that the recommendation of the International Commission on Radiological
Protection161 that what was a safe dose for humans was also a safe dose for
flora and fauna was unacceptable.162
On the whole, the Environment Agency’s conclusion about the absence of

significant adverse environmental impacts from the disposal of radioactive waste
stems more from the lack of evidence of environmental harm than from evidence
of the absence of environmental harm. This presumption against the existence
of harm can be criticised. Notwithstanding the fact that the question of whether
any particular development is likely to have significant environmental effects is a
matter for the decision-making authority, subject only to W e d n e s b u r y
156
Environment Agency, AWE Decision Document, paras. 4.5.5, 4.5.8 and 4.6.4.
157
Ibid., paras. 4.6.3 and 4.6.8.
158
Environment Agency, Magnox Decision Document, supra, paras. PA.67 and P6A.70.
159
Ibid., para. P6A.92.
160
Ibid., para. 6A.95.
161
Hereinafter “ICRP”. The Commission was set up by the International Society of Radiology, a
body of professional bio-radiologists. It offers recommendations to regulatory and advisory
agencies and provides advice to management and professional staff with responsibilities for
radiological protection. The Commission elects its own members under rules that are subject to
the approval of the Society.
162
Environment Agency, Sellafield Consultation Document, supra, Appendix 8, para. A8.8.
174
challenge,163 the European Court of Justice held in World Wildlife Fund & Ors. v.
Autonome Provinz Bozen & Ors.,164 that a member state could not undermine
the objective of EC Directive 85/337/EEC by excluding from the assessment
procedure a specific project, as not being likely to have significant effects on the
environment unless the specific project excluded could, on the basis of a
comprehensive assessment, be regarded as not being likely to have such
effect.165 A summary conclusion by the Agency that it was satisfied, on the basis
of modelling evidence extrapolated from data of questionable relevance, that the
proposed discharges of radioactive wastes would have no significant effect on
the environment could hardly be said to have been reached on the basis of
comprehensive assessment.
Contracting states will not be under the same strict legal obligation to provide for
public participation for all forms of environmental decision-making. Thus, under
Article 6, the public must be given opportunities to participate in decisions
relating to permission for proposed specific activities that have “significant effects
on the environment”. The obligation to provide for public participation is
considerably more exhortatory in tone in respect of plans, programmes or
policies. Article 7 vaguely obliges states to make “appropriate practical and/or
other provisions for the public to participate during the preparation of plans and
programmes relating to the environment, within a transparent and fair
framework…”.166 As for plans, programmes or policies that do not relate to the
environment but affect the environment, contracting states are only required to
“endeavour to provide opportunities for public participation” in their preparation.
The same exhortatory tone is found in Article 8, which requires contracting states
to “strive to promote effective public participation at an appropriate stage, in
respect of the preparation of executive regulations and other legally binding rules
that may have a significant effect on the environment.
163
R. v. Swale Borough Council & anor., ex p. Royal Society for the Protection of Birds [1991]
JPL 39, 47.
164
Case C-435/97, [1999] ECR I-5613.
165
Ibid., para. 45.
166
Emphasis mine.
175
Thus, it would appear while public participation in respect of decisions on
specific activities is a requirement under the Aarhus Convention; participation
may be restricted or even excluded in respect of strategic decisions that
dominate the decisions on specific activities. This is particularly the case in
respect of plans and programmes that are not related to the environment as
such, but affect the environment nevertheless. The discretion to restrict or
exclude participation in such plans and programmes would be a significant
limitation on the scope of participation in the regulation of disposal of radioactive
wastes, where the final decision would be strongly influenced by policies such as
the decommissioning of nuclear facilities, defence or energy production.
Environment Agency Practice
The Environment Agency clearly went beyond existing legal requirements in

respect of the scope of participants invited to participate in the decisions. It
extended its consultation to the public, as well as to a number of national and
local governmental and non-governmental organisations in respect of its
proposed decisions, regardless of whether the invitees had any legal right or
interest at stake.167 The Agency invited written representations, and held public
surgeries168 and public meetings. Much was also done to publicise the start of
consultation on the proposed decisions including placement of advertisements
and notices in national and local newspapers. News releases were also issued
and further publicity of the consultation was given through coverage of interviews
with Agency staff in the local media. Posters were also placed in local shops
167
See Environment Agency, AWE Decision Document, supra, Appendix 1; Environment
Agency, Magnox Decision Document, supra, Appendix 2; and Environment Agency, Sellafield
Consultation Document, supra, Annex 1 for the list of statutory consultees and interested parties
invited to comment on the proposed decisions.
168
Public surgeries are one-to-one walk-in meetings between members of public and Agency
staff where individuals can obtain information as well as convey their views on proposed
decisions. They are an alternative to written consultations and public meetings, for those who
prefer face-to-face meetings but may feel uncomfortable or intimidated to speak at a public
forum. Public surgeries also allow more time to be devoted for specific questions to be
addressed in greater detail (see Environment Agency, Magnox Decision Document, supra,
paras. 5.29 and 5.59).
176
and post offices, and local MPs were notified.169 In respect of the consultation
documents, these were sent out to specific organisations and interested parties,
and also made available for viewing at specified local authority offices, Agency
offices, and public libraries.170 The documents were also made available for
viewing and downloading at the Agency’s website; and sent free of charge to
members of the public on request. At the end of the consultation period for the
AWE Decision, the Agency received over 4000 responses to the consultation,171
of which 3874 letters and post cards came from individual members of the
public.172
The Agency also held public meetings at Newbury, Tadley, and Reading in July
and September 1998.173 The aim of these initial public meetings was primarily
for the applicant to explain the application and for the public to “listen,
understand and express comments or concerns” and the Agency to outline the
consultation process and explain its role, including the relevant factors that it
could take into account.174 Subsequent public meetings were held at
Pangbourne and Tadley in October 1999 so that the Agency could explain to
local members of the public how the key issues had been addressed in the
proposed decision and for the public to raise any areas of concern that they felt
the Agency had not addressed.175 These meetings were not intended to be a
forum for challenging the validity of opposing views or evidence. Neither were
any local inquiries held for this purpose.176
The consultation period for the Magnox Decision was initially intended to be
three months, but was extended by three months when BNFL announced its
169
See for example, Environment Agency, Magnox Decision Document, supra, para. P.52; and
Scope and Methodology Response Document, supra, para. 3.3.2.
170
See Environment Agency, AWE Consultation Document, supra, Appendix 2; and Environment
Agency, Sellafield Consultation Document, supra, Annex 2, for the list of locations.
171
172
Ibid., Appendix 2.
173
Ibid., para. 1.7.3.
174
Environment Agency, Proposals for EPC, supra, para. 3.7.
175
Environment Agency, AWE Decision Document, supra, para. 1.7.8; and Proposals for EPC,
ibid., para. 3.14.
176
See below.
177
intention just before the start of consultation to cease operation at Hinkley Point
A power station.177 The consultation period was extended again, this time by
four months, following representations from members of the public in the vicinity
of Bradwell who expressed concern about incineration of radioactive waste at
that site.178 In all, the Agency received 2790 consultation responses in respect
of the Magnox Decision.179 The Agency also organised public meetings and
surgeries in the vicinity of each site and attended meetings organised by other
interested groups.180 The Agency published its proposed decision issued in
August 2001 and forwarded to the Secretaries of State, the document as well as
requests from some of the respondents for a local inquiry to be held in respect of
the decision.181 To date, the Secretaries of State have not indicated whether any
local inquiry will be held.
In respect of the Sellafield Decision, the Environment Agency consulted

interested parties and the public for eight weeks182 on the scope and
methodology for the re-examination of the Sellafield authorisations for the
disposal of radioactive waste and four months183 on the proposals arising from
the re-examination proper. It also held walk-in surgeries in Cumbria at Gosforth
and Whitehaven to enable the local population to discuss the scope and
methodology of the review on a one-to-one basis with Agency staff.184 Once
again, there seems to be a lack of opportunity to contradict or test the validity of
the facts or values held by the Agency or other participants. As events are still
unfolding, it is not known if the Secretary of State will eventually direct that a
local inquiry be held.
177
Environment Agency, Magnox Decision Document, supra, para. 1.12.
178
Ibid., loc. cit..
179
Ibid., para. 1.13.
180
Ibid., para. 1.11.
181
Ibid., para. 1.19.
182
Environment Agency, Sellafield Scope and Methodology Consultation Document, supra, p.
24.
183
Environment Agency, Sellafield Consultation Document, supra, para. 2.10.
184
Environment Agency, Sellafield Scope and Methodology Response Document, supra, para.
2.3.
178
Local Inquiry
In the AWE Decision, the Secretaries of State for the Department of the
Environment, Transport and the Regions; and for Health also decided not to hold
a local inquiry.185 They considered that the fact that “Atomic Weapons
Establishments are a facility with a high profile nationally, and a significant focus
for those opposed to the UK's nuclear defence capability and policies” was not
an automatic reason for them to intervene.186 A local inquiry was not necessary
in view of the
lengthy process of consideration of these applications adopted by the Environment

Agency, and the variety of opportunities for public participation in it, with several public
187
meetings at each significant stage in the Agency's deliberations.
In view of the extensive public consultation that had already taken place on the
Magnox and Sellafield Decisions, albeit mainly in the form of written
representation, and judging from the Ministers’ reasons for not holding a local
inquiry decision in the AWE Decision, it seems unlikely that any local inquiry will
be held in respect of the decision.
The fact that the Environment Agency adopted a lengthy process of consultation
should have been irrelevant to the question of whether to hold a local inquiry;
Potts J. had held in the Greenpeace case that the delay and the consequent
financial implications a hearing or inquiry would entail and the consequent
financial implications was an irrelevant consideration in that case.188 What was
more pertinent was the nature of the consultation that took place in the process.
The three-month public consultation was l a r g e l y based on written
representations, so respondents would not have had the opportunity to confront
185
Department of the Environment, Transport and the Regions, Minister's Decision on
Applications by AWE plc for Authorisation to Dispose of Radioactive Waste from the Atomic
Weapons Establishments at Aldermaston and Burghfield, and Authorisation issued by The
Environment A g e n c y . As at 10 July 2001, accessible online at
http://www.defra.gov.uk/environment/radioactivity/waste/awe/index.htm.
186
Ibid., para. 42.
187
Ibid., para. 17.
188
Supra, p. 382.
179
other respondents or experts. Nevertheless, despite these shortcomings, it is
likely that a decision not to hold a local inquiry in the circumstances will, following
the Greenpeace case, be upheld by the courts.
The Environment Agency’s consultation process falls short of the requirement in

the Aarhus Convention that contracting states enable public participation in
environmental decision-making “without discrimination as to citizenship,
nationality or domicile”.189 Contrary to this requirement, the Agency consulted all
UK local authorities bordering the Irish Sea in respect of the Sellafield Decision,
but omitted to consult their Irish counterparts, taking the view that the 1993 Act
did not require consultation with local bodies outside the UK, and that
consultation outside the UK was a matter for the government. Opportunities for
the Irish public to participate in the Sellafield Decision were thus only tenuously
made available through the government of the Irish Republic via the Foreign and
Commonwealth Office, and more generally through the Agency’s website.190
(B) Agenda and Rules
The 1993 Act does not prescribe any particular mode of consultation for statutory
consultees, but as Sachs LJ pointed out in Sinfield & Ors. v. London Transport
Executive, “any right to be consulted … should be implemented by giving those
who have the right an opportunity to be heard at the formative stage of proposals
before the mind of the executive becomes unduly fixed … it would seem
essential to [the consultees] that such consultation should be on a broad basis
so as to enable them to deal with any important question that touched either their
interests or those who lived in their area”.191
189
Aarhus Convention, supra, Art. 3 para. 9.
190
Environment Agency, Sellafield Scope and Methodology Response Document, supra, paras.
3.2.1 and 3.2.2.
191
[1970] 2 All ER 264, 269. Emphasis mine.
180
Insofar as the agenda for consultation is concerned however, there is a legal
limit to the scope of issues that the Agency can consider regardless of the logical
relevance of such issues to the Agency’s decisions. Thus, in the AWE Decision,
issues relating to the deployment of the Trident nuclear weapon system went
beyond the scope of issues the Environment Agency could legally consider. As
such, the Agency did not respond to comments on the legitimacy or the
environmental impact of the deployment and use of these weapons. Comments
were instead forwarded to the then Secretary of State for the Environment and
the then Minister for Agriculture, Fisheries and Food for their consideration.192
Similarly, in the Magnox Decision the Agency considered that the policy on
nuclear power and on renewable sources of energy and energy conservation
were matters for the government.193 In the Sellafield Decision, the Agency
proceeded on the assumption that the reprocessing of spent fuel was a
necessity.194
Such a dis-integrated approach to environmental decision-making, reinforced by

the legal framework, whereby the question of radioactive waste disposal is
separately considered from the continuing need for the activity that produces the
waste, is a necessary evil in a centralised administration charged with the
introduction of large-scale technological solutions to improve resource
productivity. Pursuant to ministerial guidance issued under s. 4(2) of the 1995
Act, to which the Environment Agency must have regard in discharging its
functions, it is for the government to maintain and develop a policy and
regulatory framework which, inter alia, ensure that radioactive wastes are not
unnecessarily created, and the Agency’s duty to ensure that such a framework is
properly implemented in accordance with its statutory powers. The government
had affirmed in its White Paper, the Strategic Defence Review,195 and its
commitment to an independent nuclear deterrent by arming nuclear submarines
with Trident nuclear missiles.196 As Turner J. pointed out in deciding that the
192
193
Environment Agency, Magnox Decision Document, supra, paras. 6A.2 and 6A.3.
194
Environment Agency, Sellafield Scope and Methodology Consultation Document, supra, para.
3.6.
195
Ministry of Defence, Strategic Defence Review (Cm 3999) (London: HMSO, 1998).
196
Environment Agency, AWE Consultation Document, supra, para. 1.2.1.
181
Agency had, in respect of the AWE Decision, properly declined to question the
merits of deploying Trident missiles as a nuclear deterrent,
the [Agency] had no powers, nor yet did it purport to exercise any, in respect of the
production of Trident, its storage or the accumulation of radioactive material. Its functions
were solely concerned with the conditions under which radioactive waste discharges
should be permitted. It is also notable that the decision with which this litigation is
concerned neither authorised the design and manufacture nor the decommissioning of
197
Trident. Its sole purpose was to authorise the release of radioactive wastes…
Local Inquiry
The Environment Agency’s legal impotence to consider all relevant factors

outside its legal powers to regulate the disposal of radioactive wastes would
have been one reason for the Secretary of State to call-in applications relating
thereto and where necessary cause a local inquiry to be held under s. 24 of the
1993 Act. If the purposes of holding an inquiry are to assist the minister in
weighing conflicting issues and to satisfy the requirements of procedural
fairness, both the minister (and his inspector) and representors should have had
a role to play in setting the agenda of the inquiry. A majority of the House of
Lords held in the Bushell case, however, that representors at a local inquiry are
only entitled to make representations about local and private interests; the
decision-maker is entitled to exclude from debate at the inquiry, the merits of
government policy purportedly made in the public interest. In that case, the
Secretary of State had set up an inquiry to look into proposed schemes to
authorise the construction of two sections of a motorway. The selection of the
exact route to be followed through a particular locality by a motorway was
considered a particular application of policy and therefore an appropriate subject
for full investigation at a local inquiry because “it affects particular local interests
only and normally does not affect the interests of any wider section of the
public…”, but the merits of the underlying policy to construct a nationwide
network of motorways, and the ordering of the stretches of motorway to be
constructed were considered more appropriate for debate in Parliament, to
197
R. v. Environment Agency, ex p. Marchiori & NAG Ltd, supra, para. 47. The decision has
been upheld on appeal in Emanuela Marchiori v. Environment Agency [2002] EWCA Civ 3.
182
whom the minister was answerable.198 The court endorsed199 the Franks
Committee’s argument that the ministerial power to exclude the discussion of
policy in local inquiries “avoids useless discussion of policy in the wrong
forum”.200
The House of Lords did not stop there. They held that the propriety or otherwise
of the technical methodology or data adopted internally by a department to arrive
at policy decisions could also be excluded by the Secretary of State from debate
at the inquiry.201 Like the underlying motorway policy itself, the methods and
assumptions used by the government in formulating these policies were
considered an essential element of policy and unsuitable for investigation at
individual local inquiries by an inspector whose consideration of the matter was
necessarily limited by the material that happened to be presented to him at the
particular inquiry he was holding.202 Furthermore, it was considered that “no one
who is not an expert in this esoteric subject could form a useful judgement as to
its merits”;203 and that such technical issues were better monitored by an
independent standing advisory committee.204
The Bushell case not only shows that the fact/policy dichotomy continues to be
relevant in relation to the agenda at a local inquiry, it is also relevant in respect of
the procedure to be followed at such an inquiry. As Lord Diplock explained, in
the absence of any statutory rules governing the procedure to be followed in a
198
Supra, p. 98.
199
Ibid., pp. 105-6.
200
Franks Committee Report, supra, para. 288.
201
Bushell case, supra, p. 100. Contra the dissenting judgement of Lord Edmund-Davies at pp.
114-5. He accepted that matters of policy could and should be excluded from a local inquiry, but
citing the Franks Committee Report, supra, para. 316, he disagreed that matters of fact and
expertise should likewise be excluded.
202
Ibid., pp. 100-1. No account seemed to have been taken of the fact that the local inquiry was
the only forum available to these objectors to challenge the department’s underlying premise that
there was a need for the proposed motorway. To hold that the local inquiry was an inappropriate
forum for national policy when no other forum was available to the public (p. 106) effectively
denies members of the public any right to participate in the deliberation of policy issues except
tenuously through their parliamentary representatives.
203
Per Lord Diplock, ibid., p. 99.
204
Per Viscount Dilhorne, ibid., pp. 110-1.
183
local inquiry, the procedure is necessarily left to the discretion of the minister or
the person appointed by him to hold the inquiry on his behalf, so long as the
procedure adopted qualifies to be described as a local inquiry, i.e., an inquiry
held in public in the locality of the works that are the subject of the proposed
decision to hear the objections of the local authorities and private persons in the
vicinity whose interests may be adversely affected by the decision that will follow
the inquiry. The procedure must also be fair (in common law terms) to all those
who have an interest in the decision that will follow it whether or not they have
been represented at the inquiry.205 This does not mean that all who are
interested should be entitled to participate at the inquiry, only that the procedure
to be applied for those who are entitled to participate should take into account
the interests of those who cannot or do not participate at the inquiry. In
particular, the more policy oriented the issue, the more likely it is that a wider
public will have an interest in the decision, and accordingly, the less appropriate
it is to assess the procedural fairness of the inquiry in terms of the adversarial
procedure of the courts.
Common Law
The approach adopted in the Bushell case illustrates the application of the more
flexible approach to procedural fairness since the House of Lords in Ridge v.
Baldwin206 reinstated the principle that the duty to act in accordance with the
rules of natural justice was not restricted to administrative decisions of a judicial
or quasi-judicial nature; but also applied more generally to protect people whose
legal rights or interests were affected by an administrative decision.
The judicial classification of administrative decisions as judicial, quasi-judicial,

and administrative had allowed the courts to limit their imposition of an
adversarial model of procedural fairness to administrative functions akin to those
of a court of law adjudicating upon a lis inter partes.207 The extension of the
scope of procedural fairness to non-adjudicative forms of administrative
205
Ibid., pp. 94-6.
206
Supra.
207
See for example, R. v. Local Government Board, ex p. Arlidge, [1915] AC 120.
184
decision-making requires greater flexibility in the standard of procedural fairness
to suit different types of administrative functions. This is reflected in the change
in terminology from the “natural justice” traditionally associated with judicial
decision-making, to a more generic “procedural fairness”.208 The essence of the
concept of procedural fairness is clear – a person affected by a decision should
have a reasonable opportunity to present his case209; or as Lord Russell puts it,
“a fair crack of the whip”210 - but the application of the concept in individual cases
is somewhat intuitive,211 and influenced by a multitude of factors. As Lord Bridge
explained,
what the requirements of fairness demand when any body, domestic, administrative or
judicial, has to make a decision which will affect the rights of individuals depends on the
character of the decision-making body, the kind of decision it has to make and the
212
statutory or other framework in which it operates.
Having extended procedural fairness to a wider range of administrative

decisions, the courts are now faced with the dilemma of choosing between213
fitting all forms of administrative decision-making into an adversarial model on a
sliding scale, a case of “squaring the circle”214 by incorporating to varying
degrees features of the adversarial model; or more radically, adopting alternative
benchmarks for the review of non-adversarial forms of decision-making,215
something courts are ill-suited to do.216
208
Re HK (An Infant), supra.
209
Per Tucker LJ, Russell v. Duke of Norfolk [1949] 1 All ER 109, 118.
210
Per Lord Russell, Fairmount Investments Ltd v. Secretary of State for the Environment [1976]
2 All ER 865, 874.
211
Per Lord Mustill, Doody v. Secretary of State for the Home Department [1993] 3 All ER 92,
107.
212
Lloyd v. McMahon, supra, p. 702.
213
Loughlin, M., “Procedural Fairness: a Study of the Crisis in Administrative Law Theory” (1978)
University of Toronto Law Journal 28: 215.
214 nd
Harlow, C., and Rawlings, R., Law and Administration (2 edition) (London: Butterworths,
1997), p. 404. For a description of the limits of the adjudicative model as a decisional process,
see Fuller, L., “The Forms and Limits of Adjudication” (1978) Harvard Law Review 92: 353.
215
Such as citizen juries.
216
Macdonald argued that the courts did not have sufficient ability to review all sorts of
administrative processes for procedural fairness and the that the task should be left to a multi-
member panel staffed by legally and non-legally trained personnel. See Macdonald, R. A.,
185
The Bushell case demonstrates the judicial preference for squaring the circle.
There, Lord Diplock considered that the inquiry had to be fair to everyone who
had an interest in the decision that would follow it whether they had been
represented at the inquiry or not, thereby recognising that an adversarial model
of procedural fairness was inappropriate.217 Yet, the procedural fairness of the
inquiry was assessed only against criteria more appropriate for the adversarial
model. Thus, while he accepted that objectors were to be allowed to
communicate their objections to the proposed scheme and be given sufficient
information about the reasons justifying the scheme to enable them to challenge
the accuracy of the facts and the validity of the arguments on which the
proposed decision was based,218 he denied them a right to cross-examine
departmental witnesses on the methodology adopted for forecasting traffic flow
on the grounds that such a right would “over-judicialise” proceedings.219
Similarly, Viscount Dilhorne and Lord Lane considered and rejected the
imposition of trial-type procedural characteristics at an inquiry that was not
intended to be adjudicative in function,220 but did not consider what non-trial
procedural characteristics might be applicable in such circumstances. Even the
dissenting judge, Lord Edmund-Davies, took the same approach, disagreeing
only on whether the methodology adopted for forecasting traffic flow was a
factual issue for which procedural fairness required trial-type safeguards under
the supervision of the courts; or a policy issue for which trial-type safeguards
were inappropriate and procedural fairness was more appropriately supervised
by parliament than the courts.221
“Judicial Review and Procedural Fairness in Administrative Law: I” (1980) McGill Law Journal 25:
520; and Macdonald, R., A., “Judicial Review and Procedural Fairness in Administrative Law: II”
(1980) McGill Law Journal 26: 1. Loughlin argued that to adopt alternative benchmarks for the
review of non-adversarial forms of decision-making would lead to a crisis in administrative law
theory. See Loughlin, M., supra.
217
Supra, p. 95.
218
Ibid., p. 96.
219
Ibid., p. 97.
220
Ibid., pp. 107 and 102.
221
Ibid., pp. 115-6.
186
Article 6(1) of the ECHR does not require that those whose “civil rights and
obligations” are being determined by a decision are entitled to a role in defining
the agenda or in shaping the decision-making process. Although “victims” may
still challenge the decision for being in breach of Article 6(1) when relevant
issues, arguments or evidence have unfairly been excluded from the scope of
the deliberation of the decision,222 this does not mean that all relevant issues
must necessarily be included. In the Balmer-Schafroth case for example, the
dissenting judges accepted that the Swiss government’s policy to pursue a
nuclear power strategy (as opposed to its decisions relating to licences, public-
works contracts and specifications) to be a “prerogative act” and “sovereign
attribute” of the State, and therefore an inappropriate subject for a fair hearing
pursuant to Article 6(1).223
Even more so than in common law, the requirements under Article 6(1) of a fair
hearing are heavily influenced by trial procedures. This does not mean however,
that a trial procedure is required at every stage of the determination of a person’s
civil rights; a procedural defect at one stage of the proceedings may be ‘cured’ in
subsequent proceedings.224 In particular, as long as an administrative decision
is “subject to subsequent control by a judicial body that has full jurisdiction and
does provide the guarantees of the Article 6 para. 1”,225 i.e., a court that is
competent to entertain and rule upon all relevant questions of law and fact that a
party may wish to raise,226 a “fair hearing” may not be required at the
administrative stage of the decision.
The Secretary of State is effectively the final authority in respect of decisions to

authorise the disposal of radioactive wastes, subject only to the court’s
222
Kraska v. Switzerland (1994) 18 EHRR 188, para. 30.
223
Supra, pp. 618 and 621.
224
See for example, X v. Switzerland, App. No. 9000/80 (1982) 28 D & R 127; and Schuler-
Zgraggen v. Switzerland (1993) 16 EHRR 405, para. 52.
225
Albert & Le Compte v. Belgium (1983) 5 EHRR, para. 29. Emphasis mine.
226
Zumtobel v. Austria (1994) 17 EHRR 116.
187
supervisory jurisdiction over the legality of his decisions; there is no provision for
appeal to a court on the merits or otherwise of the Agency‘s or Secretary’s
decisions. In such circumstances, the question is whether Article 6(1) requires
any procedural safeguards at the administrative (pre-judicial review) stage when
the opportunity for subsequent judicial review exists.
In R. (on the application of Alconbury Developments Ltd.) v. Secretary of State

for the Environment, Transport and the Regions & other cases,227 the issue
before the court was whether planning decisions made by the Secretary of State
at the end of a quasi-judicial procedure before a planning inspector appointed by
the Secretary, with only a possibility of judicial review rather than an appeal to
the High Court, was compatible with Article 6(1). For Lords Slynn and Clyde, the
quasi-judicial procedure, coupled with the availability of a sufficient degree of
judicial review, satisfied the requirements of Article 6(1) whether or not it was the
inspector or the Secretary of State who made the final decisions.228 Lords
Hoffman and Hutton, on the other hand, took a more contextual approach. They
considered the desired and actual grounds of complaint before the court
exercising supervisory jurisdiction in each particular case to be critical. Where
the complaint related to a dispute of factual issues, the observance of a quasi-
judicial procedure at the inquiry stage was a relevant consideration. Where on
the other hand, the complaint related only to the merits of a policy decision, the
scope of supervisory jurisdiction of the domestic court alone was sufficient; the
existence or otherwise of procedural safeguards at the inquiry stage was
irrelevant.229 Lord Nolan, did not give any indication in his short judgement that
227
[2001] 2 All ER 929. Hereinafter “Alconbury case”.
228
Ibid., pp. 973, 977, 1005 respectively.
229
Ibid., pp. 991 and 994; and 1014 respectively. Although the law lords purported to rely on
Bryan v. UK, (1995) 21 EHRR 342, on this point, the European Court of Human Rights in that
case seemed to consider the procedural safeguards at the inquiry stage to be an important
consideration for the European Court of Human Rights regardless of whether the grounds of
complaint before the supervising court related to policy or fact-finding (see in particular, para. 46
of the judgement). Zumtobel v. Austria, supra, was also cited, but is more ambivalent. There,
the administrative court was held to be in a position to address all the submissions of the
applicants without ever having to decline jurisdiction (para. 32) even though it only had a limited
competence to satisfy itself that the factual conditions precedent for the administrative decision to
expropriate the applicant’s property had been properly established without being able to rehear
188
he considered either the procedural safeguards or the context to be particularly
relevant; he seemed to have arrived at the conclusion that judicial review was
adequate for the purposes of Article 6(1) on the facts of the case as a matter of
constitutional principle as well as ECHR jurisprudence.
The conservative position in the Alconbury case is therefore that where recourse
to a court is limited to judicial review, a quasi-judicial procedure, at least in
respect of fact-finding, must still be followed at the administrative stage of
decision-making where civil rights are being determined.230 The requirement for
a fair hearing may not amount to anything more than what common law requires
of common law however. In Bryan v. UK and in the Alconbury case, a planning
inspector acting in a quasi-judicial role conducted the public inquiry, which was
regulated by statute and agency guidelines. Procedural safeguards involved the
calling of witnesses to give oral evidence, cross-examination of witnesses and
the making of representations. The Secretary of State also had to observe
additional statutory procedural safeguards protecting interested parties before
departing from any finding of fact made by an inspector.
In R. (on the application of Vetterlein) v. Hampshire County Council & Ors.

however, a further distinction was drawn between primary and secondary fact-
finding and it was held that where only the factual inferences involving
professional judgement, but not the primary facts were in dispute, a fair hearing
at the administrative stage could require no more than the opportunity to make
detailed written representations, as well as the opportunity to address the
administrative authority at a public meeting.231
evidence (para. 31). Crucially, it is not clear from a reading of the case whether the procedural
safeguards at the administrative stage of decision-making were thought to be relevant.
230
According to Lords Hoffman and Hutton however, this requirement only arises where factual
issues are in dispute before the review court, and is not applicable in respect of disputes about
the merits of policy.
231
R. (on the application of Vetterlein) v. Hampshire County Council & Ors. [2001] EWHC Admin
560, paras. 70-1. It has to be said that the distinction drawn between primary and secondary
fact-finding is a dubious one since the dispute in Bryan v. UK also concerned factual inferences
involving professional judgement rather than the primary facts (supra, para. 47).
189
In a further development, it has been held in R. (on the application of Adlard &
Ors.) v. Secretary of State for Environment, Transport & Regions)232 that in
decisions to determine planning applications where environmental decision-
making at the administrative stage is predominantly one that turns on questions
of judgement and discretion rather than on findings of fact, Article 6(1) does not
require that objectors to the application be orally heard by the local planning
authority, or at a public inquiry.
It is plain that given that the Environment Agency’s decision-making in relation to

the authorisation of radioactive waste disposal turns predominantly on questions
of discretion and judgement, and the involvement of secondary rather than
primary facts, the extensive written consultation exercises undertaken by the
Environment Agency would meet the requirements of Article 6(1) in this regard.
Aarhus Convention
While the Aarhus Convention is quite clear about the attendance requirements
for public participation in environmental decision-making (at least in respect of
decisions about permitting specific activities), it is significantly more vague when
it comes to the mode of participation to be adopted, essentially leaving it to each
contracting state to decide the appropriate procedure for public participation and
to inform the public of the procedure rather than consult the public on it.233
Nevertheless, states are required at a minimum to ensure that the “public
concerned” is provided with timely and effective notification of a proposed
environmental decision;234 and sufficient time for timely and effective
participation in the decision-making.235 The Convention is more ‘generous’ in
terms of agenda setting; it requires that the public must also be allowed to
submit “in writing or, as appropriate, at a public hearing or inquiry with the
232
[2002] EWCA Civ 671, para. 31. Hereinafter “Adlard case”.
233
Art. 6, para. 2.
234
Ibid., loc. cit..
235
Art. 6, paras. 3 and 4.
190
applicant, any comments, information, analyses or opinions that it considers
relevant to the proposed activity”.236
Once again, the Environment Agency exceeded existing legal requirements in

respect of agenda setting by allowing participants to raise issues that were within
the Agency’s legal competence to consider. In the AWE Decision, the
Environment Agency consulted particularly on specific issues raised in its
“Consultation Response Questionnaire”,237 but it also welcomed responses on
any of the environmental issues raised in its consultation package.238 As the
Agency explained in its Proposals for EPC, one of the purposes of consulting on
the proposed decision was to check with consultees that all relevant issues had
been brought to its attention and that it had understood any consultee’s
concerns;239 this necessarily required that consultees be permitted to raise
issues that the Agency had not contemplated.
In respect of the Magnox Decision, a consultation response questionnaire was

also used, the issues were however more widely framed; consultees were invited
to comment on BNFL’s applications, the benefits or detriments of continued
operation or decommissioning (as the case may be), the proposed limits and
conditions on the Agency’s draft authorisation, and the consultation process.240
They were also invited to make any other comments they wished.
236
Art. 6, para. 7. Emphasis mine.
237
Environment Agency, AWE Consultation Document, supra, Appendix 1.
238
Ibid., para. 7.2. These issues were responded to in Environment Agency, AWE Decision
Document, supra, para. 4.
239
240
See, for example, Environment Agency, Radioactive Substances Act 1993: Explanatory
Document and Draft Authorisation Prepared by the Environment Agency to Assist Public
Consultation on Applications by British Nuclear Fuels Ltd to Dispose of Radioactive Wastes from
Berkeley Centre Gloucestershire (Bristol: Environment Agency, 2000), Appendix 2. Hereinafter
“Berkeley Centre Magnox Consultation Document”.
191
Compared to the earlier decisions, the agenda for consultation in respect of the
Sellafield Decision seemed the most consultee-driven. A less structured
consultation format was adopted in terms of the issues for consultation;
consultees were simply invited to comment on its proposals as well as on all
matters set out in the consultation package, including the Agency’s methods and
assessments, rather than being given a list of issues to comment on.241
As mentioned earlier, an open invitation to consultees to comment on any issue

considered appropriate should however not be mistaken as an obligation to
consider all issues raised that were relevant to the regulation of the disposal of
radioactive wastes. In this regard, the Agency’s position was that
If representations are made, raising issues relevant to the decision but outside the scope
of the Agency’s expertise or remit, they should be referred to an appropriate organisation
242
for comment.
As for the procedural rules for participation, the consultation procedures in

respect of the AWE, Magnox, and Sellafield Decisions were decided by the
Environment Agency, presumably with input from the public, but not necessarily
from the actual participants themselves. The Agency had consulted generally on
its proposals for extended public consultation on selected licence applications,
including its proposed consultation process at each stage of its decision-making
procedure243 and mechanisms for public consultation.244 Prior to this
consultation, In respect of the AWE Decision, the Environment Agency also held
public meetings at Newbury, Tadley, and Reading to explain its decision-making
process.245 Comments on the consultation process were also sought in the
course of each consultation, presumably to assist in planning consultations for
subsequent decisions.246 Thus, while participants were consulted on the
procedure for participation, and it is unlikely that their views had been considered
241
242
243
Ibid., para. 3.
244
Ibid., Annex 1.
245
246
See, for example, Berkeley Centre Magnox Consultation Document, supra, Appendix 2.
192
by the Agency; there is little to indicate that the final procedure adopted actually
incorporated these views.
(C) Facilitator/Moderator
When considering applications for the disposal of radioactive waste, or reviewing

existing authorisations, the Environment Agency is not under any statutory duty
to provide opportunities for the public to participate in the selection of the
facilitator/moderator for public participation. Indeed, it is perfectly entitled to
appoint one or more of its own staff to act as facilitator or moderator. Similarly,
where the Secretary of State calls in the application for disposal of radioactive
waste, and she decides to hold a local inquiry to be held in respect of the
application, participants at the inquiry have no statutory role in the selection of
the facilitator/moderator.
In general terms, the Secretary of State has substantial control over how the
Environment Agency discharges its functions, both substantively and
procedurally. The Environment Agency must “have regard to” ministerial
guidance on the appropriate objectives to pursue in the discharge of its functions
including its contribution to the achievement of sustainable development.247 The
Secretary of State may also, after consultation with the Agency, give the Agency
directions of a general or specific character with respect to the carrying out of
any of its functions.248 In respect of authorisations to dispose radioactive
wastes, the Secretary may give directions as she thinks fit to refuse
authorisations, grant authorisations with or without specified conditions or
limitations, vary an authorisation, or revoke a registration.249 She may also call-
in applications of a general description or specific applications for her
determination.250 Procedurally, other than her power to give general or specific
247
1995 Act, s. 4.
248
Ibid., s. 40(1).
249
1993 Act, s. 23.
250
Ibid., s. 24.
193
directions to the Agency with respect to the carrying out of its functions,251 the
Secretary of State is also empowered to cause inquiries or other hearings to be
held in connection with any of the Agency’s functions.252
In addition to overseeing the way the Environment Agency discharges its

functions, the Secretary of State also decides on the membership of the Agency,
including the designation of the chairman and deputy chairman of the Board.
While members are appointed for fixed terms of office and may not be
prematurely removed from office except on specified grounds,253 they depend on
the Secretary of State for re-appointment at the end of their term of office.254
Common Law
There is no provision for those who are entitled to be heard before a decision is
made to have a say in who ‘hears’ them; under the adversarial paradigm, the
right to choose the facilitator would be tantamount to the right to choose one’s
judges, understandably a practice that judges would be reluctant to
countenance. Common law does however, impose restrictions on the choice of
the person who hears the parties and subsequently makes the decision. In
particular, administrative decision-making must be free from a “real danger of
bias” in the sense that the decision-maker might unfairly regard with favour or
disfavour the case of a party to the issue under consideration by him.255 Thus, a
decision-maker must disqualify himself from making a decision in which he has a
direct pecuniary or proprietary interest in the outcome, or even if he has some
other personal interest in the outcome, e.g., the active promotion of a cause in
which he is involved together with one of the parties.256 It has however been
considered “self-evident”257 that the concept of bias does not operate to
251
1995 Act, s. 40(1).
252
Ibid., s. 53(1).
253
1995 Act, s. 1; read with 1999 Act, s. 26.
254
Ibid., loc. cit..
255
R. v. Gough [1993] AC 646.
256
R. v. Bow Street Metropolitan Stipendiary Magistrate & ors., ex p. Pinochet Ugarte (No 2)
[1999] 1 All ER 577.
257 th
Wade, H. W. R., and Forsyth, C. F., Administrative Law (8 edition) (Oxford: Oxford University
194
disqualify an administrative decision-maker who, by virtue of his office or
employment, has expressed or is under an institutional predisposition to promote
certain policy outcomes as long as his mind is not foreclosed.258 Furthermore,
where statute confers the power to make the decision on a decision-maker, and
on him alone, the courts have as a matter of necessity declined to disqualify the
decision-maker for apparent bias even if he has a vested personal interest as
opposed to a mere policy interest in the decision; legally, no one else can make
the decision.259
Thus, the Secretary of State’s, and by extension the Environment Agency’s,

‘predisposition’ towards authorising the disposal of radioactive wastes is not a
reason to disqualify either of them or their staff from granting the authorisation
decision or indeed from facilitating or moderating or appointing
facilitators/moderators for any public participation proceedings in relation to the
decision. Furthermore, since the 1993 Act clearly confers on the Agency and the
Secretary of State and on them only, the power to authorise the disposal of
radioactive waste, the courts are not likely in any case, to disqualify them from
deciding on the applications for authorisation or to conduct any public
consultation relating thereto.

As in common law, under the ECHR, the right to a fair hearing does not entail a
right to participate in the selection of a facilitator/moderator. Article 6(1) of the
Press, 2000), p. 464.

258
R. v. Secretary of State for the Environment & anor., ex p. Kirkstall Valley Campaign Ltd,
[1996] 3 All ER 304. As Sedley J. pointed out on pp. 381 and 324 of the case, a decision-
maker’s commitment to policy can still be challenged in court if the decision-maker is shown to
have predetermined the issue by closing his mind to reasoned argument. This however, is not
because of the existence of apparent bias; but because he has fettered the discretion conferred
on him.
259 th
R. v. Gaming Board for Great Britain, ex p. Kingsley CO/2506/94, 11 January 1996,
unreported.
195
ECHR does however prescribe that the determination of civil rights and
obligations must take place before an independent and impartial tribunal.
“Independence” in this context entails independence of the executive as well as

of the parties.260 It may be inferred from factors such as the manner of
appointment of the members of the tribunal, their security of tenure, the
existence of guarantees against outside pressure and whether an appearance of
independence is presented.261
The tribunal and its members must also be free from prejudice or bias.
Impartiality under Article 6(1) does not merely denote the absence of personal
impartiality, i.e., personal conviction on the part of the decision-maker. It
includes an objective dimension – the tribunal must positively offer guarantee
sufficient to exclude any legitimate doubt of prejudice or bias.262 Clearly, the
requirements in respect of impartiality are more stringent than those in common
law. As Lord Slynn pointed out in the Alconbury case, independence and
impartiality are related concepts;263 it is difficult to see how a decision-maker who
is not independent can have the objective appearance of impartiality.
The European Court of Human Rights in Bryan v. UK considered that a planning

inspector did not have the requisite “appearance of independence” for the
purpose of Article 6(1) of the ECHR because the Secretary of State could revoke
his appointment at any time even during the course of proceedings that are in
progress.264 Given the limited tenure of the Environment Agency’s members and
the power of the Secretary of State to intervene in the Agency’s regulation of the
disposal of radioactive wastes, the Agency and its staff to whom day-to-day
operations are delegated do not have appear any more independent or impartial
than the planning inspector in Bryan v. UK. Nevertheless, this is not necessarily
incompatible with Article 6(1) if, as was the case in Bryan v. UK, recourse is
available to a sufficient degree of review by an independent judiciary. After
260
Ringeisen v. Austria (No. 1), supra, para. 95.
261
Campbell & Fell v. UK (1985) 7 EHRR 165, para. 78.
262
Piersack v. Belgium (1983) 5 EHRR 169, para. 30.
263
Supra, p. 973.
264
Supra, para. 38.
196
dwelling at length on the fact that the planning inspector was required to decide
the applicant's planning appeal in a quasi-judicial manner, to exercise
independent judgement and not be subject to improper influence,265 the court
decided that on the facts of the case, the opportunity for judicial review satisfied
the requirements for an independent and impartial tribunal because the issues in
dispute at the judicial review involved “a panoply of policy matters” that could be
adequately dealt with within the reviewing court’s jurisdiction in respect of
questions of law. It held obiter, that even if the dispute had turned on facts
rather than policy, the review court’s limited fact-finding jurisdiction would have
been adequate for the purpose of satisfying Article 6(1) in the context of a
specialised area of law such as town and country planning.266
The House of Lords extended the decision Bryan v. UK to the facts in the
Alconbury case. In the former case, the planning inspector made the final
decision at the end of the inquiry. Overruling the latter decision at the High
Court, the Law Lords held that even where it was the Secretary of State and not
the planning inspector who made the decision at the end of an inquiry or hearing,
the decision could still be compatible with Article 6(1) of the ECHR as long as
recourse to a sufficient degree of judicial review was available. A number of the
judges were in part influenced by the common law position that ministerial or
departmental policy could not amount to bias such as to disqualify a minister
from making administrative decisions.267 At the same time, supposedly on the
authority of Bryan v. UK,268 Lords Hoffman and Hutton explicitly made a
distinction between factual and policy decision-making and held that
hypothetically, if a dispute on factual issues arose, it would have had to be
determined by a someone independent for the purpose of establishing the facts,
although not necessarily independent in respect of the policy or policy
application aspects of the decision; recourse to the courts for judicial review
would not have been adequate.269
265
Ibid., para. 46.
266
Ibid., para. 47.
267
Supra, pp. 975, 978, 982,998-9, and 1010-12.
268
The European Court of Human Rights in Bryan v. UK was actually rather ambiguous about
this point.
269
Supra, pp. 991-3, and 1014-5.
197
The court categorised administrative decision-making into administrative and
judicial functions.270 It considered that judicial functions involved the
determination of rights, and had to be performed fairly and impartially.
Administrative decisions such as planning decisions, on the other hand, involved
policy, and subject to their being made lawfully, came within the purview of
Parliament and the ministers accountable to Parliament for making and applying
policy. In this, the ministers could not be and indeed was not expected to be
impartial. The House of Lords were unanimously of the view that to remove this
planning function to an independent authority unaccountable to the electorate
would be undemocratic.271 For the same reason, it held that the argument that
the Secretary of State was not impartial because the Ministry of Defence had a
financial interest in the planning application of the Alconbury development, whilst
true, was not incompatible with the Convention.272
Following the Alconbury case, an administrative decision need not be made by

an independent and impartial tribunal if recourse to the supervisory jurisdiction of
a court is available to those whose civil rights and obligations are being
determined, and fact-finding is carried out independently under a quasi-judicial
procedure.273 As mentioned in the last chapter, post-Alconbury, a fair hearing
does not necessarily require a quasi-judicial procedure at the administrative
stage of environmental decision-making where the judgement and discretion
rather than primary fact-finding play the predominant part.274 In decisions of this
nature, it has similarly been held that the administrative decision-maker need not
be an independent tribunal even in respect of the fact-finding aspects of his
exercise of judgement or discretion.275 If that is correct, then in relation to the
270
Ibid., pp. 974-5, 978, 982, 997-8, and 1010.
271
Ibid., pp. 975, 978, 980, 999-1000, and 1018.
272
Ibid., pp. 977, 979, 995, 1018.
273
According to Lords Hoffman and Hutton however, the last requirement does not arise where
no factual issues are in dispute at the judicial review stage. As mentioned earlier, cases post-
Alconbury suggest that while a fair hearing is still necessary at the administrative stage, it is
doubtful that this will necessarily entail a quasi-judicial procedure.
274
See the Adlard case, supra.
275
Laura Cummins & Ors. v. London Borough of Camden & Secretary of State for the
Environment Transport and the Regions [2001] EWHC Admin 1116, paras. 341-59. See also
198
authorisation of radioactive waste disposal, a matter where judgement and
discretion play a dominant part, then notwithstanding the lack of appearance of
independence of impartiality, recourse to the courts for judicial review would
suffice for the purpose of Article 6(1).
Aarhus Convention
Article 6(1) of the Aarhus Convention does not provide for the public concerned
play any role in choosing the moderator/facilitator for public participation.
Contracting states are only required to indicate for information, the relevant
public authority or any other official body to which comments or questions can be
submitted.276 Furthermore, the right of access to an independent and impartial
authority for the purpose of review arises only in respect of challenges to the
substantive or procedural legality of any decision, act or omission subject to the
provisions of Article 6 of the Convention,277 and not in respect of the merits of the
decision.
The Environment Agency practice is to appoint a chairman to facilitate/moderate

at public meetings without giving participants any say in the appointment.
According to the Environment Agency, a chairman who was independent of the
Agency chaired each public meeting in respect of the Magnox Decision.278 In
identifying appropriate chairs, the Agency’s practice was to seek persons with
some knowledge of the Agency and its procedures, who live locally and, have
the appropriate personal skills to conduct a potentially large public meeting.279
Friends Provident Life & Pensions Ltd. v. Secretary of State for Transport, Local Government
and Regions [2001] EWHC Admin 820, para. 94; and R. (on the application of Aggregate
Industries UK Ltd.) v. English Nature & the Secretary of State for the Environment, Food and
Rural Affairs [2002] EWHC Admin 908, para. 107.
276
Art. 6, para. 2(d)(v).
277
Art. 9, para. 2.
278
Environment Agency, Magnox Decision Document, supra, para. P5.28
279
According to information provided by the Agency in response to an email enquiry from me.
199
Exceptionally though, the public meeting held at Manchester Town Hall on 1
November 2001 to consult on the Sellafield Decision (which I attended) was
chaired by the Agency’s own Deputy Chairman, hardly the paradigm of
independence in the circumstances.
Members of the public would naturally have reservations about their lack of
involvement in the appointment of facilitators/moderators for public participation
in the AWE, Magnox and Sellafield Decisions. Some participants at a public
meeting at Wylfa, for example, expressed concern about the bias of the
chairman for the public meeting – he was said to have “called on the same anti-
nuclear representative to open and close the meeting, ignoring those in favour of
nuclear power”.280
The independence and impartiality of the decision-maker would also be a matter

of concern for the public, not least because the government has a vested interest
in the outcome of these decisions by virtue of its ownership interest in the
applicants for authorisation to dispose of the radioactive wastes, as well as its
declared commitment to and dominant role in the continuation of activities that
generate these wastes, namely the maintenance of a nuclear deterrence,
production of nuclear power, and reprocessing of spent nuclear fuels
respectively. In the Magnox Decision for example, some respondents to public
consultation raised concerns about whether the Agency is “fully independent”.281
Some respondents also took the view that the Agency was “essentially an arm of
government”, and appeared biased and partial. Consequently, even before the
public participation had got underway, they already considered the authorisation
process to have been “rubber-stamped, hushed up and pushed through”.282
The Environment Agency responded by stating categorically that it was

independent of the industry it regulates. As for independence from government,
280
Environment Agency, Magnox Decision Document, supra, paras. P5.57 and P5.59. The
Agency did not address this concern with impartiality except to reiterate that all chairmen were
independent of the Agency without further elaboration.
281
Ibid., para. P4.3.
282
Ibid., para. P5.36.
200
the Agency pointed out that its members came from a wide range of non-
governmental backgrounds.283
Conclusion
In The Ideologies of Planning Law, McAuslan concluded that planning law and
practice was underpinned by three distinct and competing ideologies -
firstly, that the law exists and should be used to protect private property and its institutions;
this may be called the traditional common law approach to the role of law. Secondly, the
law exists and should be used to advance the public interest, if necessary against the
interest of private property; this may be called the orthodox public administration and
planning approach to the role of law. Thirdly, the law exists and should be used to
advance the cause of public participation against both the orthodox public administration
284
and the common law approach of the overriding importance of private property.
According to McAuslan, planning law is dominated by the first two ideologies,

whereas the ideology of public participation represented a challenge to the
power and position of the bureaucracy in government as well as the position of
private property in society. Both the courts and the public administrators
therefore tolerated this ideology of public participation only to the extent it did not
significantly conflict with the dominant “ideologies of the status quo”.285
Twenty years on, the ideologies typified by McAuslan can be applied to aid
understanding of other areas of environmental decision-making. The 1993 Act
embodies the ideology of the orthodox public administration; it is for Parliament,
and the minister and the Environment Agency to whom authority has been
delegated to make environmental decisions in the public interest. Public
participation within the statutory framework is consistent with this ideology; it is
283
Ibid., paras. P.5.37.
284
McAuslan, P., Ideologies of Planning Law, supra, p. 2. See also, Poisner, J., “A Civic
Republican Perspective on the National Environment Policy Act’s Process for Citizen
Participation” (1996) Environmental Law 26: 53, 56-8; and Gauna, E., “The Environmental
Justice Misfit: Public Participation and the Paradigm Paradox” (1998) Stanford Environmental
Law Journal 17: 3 for broadly similar classifications of decision-making paradigms into
“synopticism” or “expertise-ism”, pluralism, and modern civic republicanism.
285
Ibid., pp. 265 and 269.
201
for the Environment Agency and the Secretary of State to decide who can aid in
decision-making and when and how they can help. To the extent that public
administrators perceive public participation as a disruptive force that challenges
rather than facilitates their authority to define the public interest, statutory
requirements to consult will be restricted to as small a list of statutory consultees
as considered necessary to assist the decision-maker, with some token public
participation to legitimise the decision. That is not to say that the decision-maker
has a clean slate to work from. Bureaucratic decision-making is inevitably
fragmented and incremental. There are issues that may be relevant to the
decision, but outside the decision-maker’s legal competence to examine. This
legal limit defines the scope of the agenda for the decision-maker and hence
also for the public supposedly aiding him in decision-making.
Private interest ideology is not so much concerned with improving the quality of
the decision as such; its concern is with procedural protection for substantive
rights against interference by administrative decisions purportedly taken in the
public interest. As such, it ensures that people who have certain private
interests that are at stake be consulted; regardless of the value of their potential
contribution to better substantive outcomes. On the other hand, people who are
interested but not affected need not be consulted as far as this ideology is
concerned. The ideology underpins the concept of procedural fairness in
common law and Article 6(1) of the ECHR, and to a lesser extent is also present
in the 1993 Act, influenced no doubt by the possibility of legal challenge from
disgruntled applicants for authorisation to dispose radioactive wastes or grantees
of existing authorisations who are denied a fair procedure prior to an
unfavourable decision.286
Common law procedural fairness also extends to protect certain interests that fall
short of legal rights. As the case studies show, common law or human rights
procedural protection of private interests works relatively well when narrow
individual interests such as life, liberty and property are at stake, but is less
286
For example, applicants for authorisation and grantees of existing authorisations to dispose of
radioactive wastes have a right of appeal against adverse Environment Agency decisions to the
minister and the right to be heard at an appeal. Third parties do not have a similar right to appeal
against adverse Agency decisions.
202
useful when the envisaged harm is more uncertain and diffused. Similarly, the
courts have been more likely to intervene in fact-finding procedures that have
exclusive ramifications for litigants rather than in polycentric policy-laden
decision-making that impact the general population. In the latter case, the courts
have been less keen to intervene because they consider public participation in
such decisions more as a political matter for deliberation in Parliament, than a
legal issue for adjudication by the courts.
In general, the scope of common law procedural fairness is generally wider than
that of the Article 6(1) ECHR fair hearing. Thus, while a genuine concern about
the effects of discharge of low-level radioactivity on personal health or their
immediate environment may give rise to a right to be heard in common law; it
would not be sufficiently specific and imminent to give rise to an entitlement to a
fair hearing before an independent and impartial tribunal under Article 6(1).
Once the courts attempt to extend their doctrines of procedural fairness of fair
hearing to cover policy-laden administrative decision-making, it runs into crisis.
This crisis is evident in common law, and has been observed by academics.287
As they pointed out, the problem is that the extension of procedural fairness to
non-adjudicative decision-making requires evaluation outside the traditional
adversarial paradigm, and the courts simply lack the resources and possibly the
competence to undertake such a task. The same crisis has also arisen but in a
different form in the ECHR jurisprudence, where the courts, having decided that
Article 6(1) also applies to non-adjudicative administrative decisions that
determine rights and obligations, must now grapple with the ‘escape route’
whereby non-compliance with the judicial model of decision-making can be
‘cured’ by a right to appeal to or review by a court possessing full jurisdiction to
deal with the case as the nature of the decision requires.288 To the extent that
the requirements of procedural fairness or fair hearing are still tied to the
adversarial paradigm, instead of contributing to sustainable development through
communicative participation, the final outcome may reinforce existing inequity in
access to resources as the participants under a lis inter partes model are
combatants competing to further their own narrow self-interests.
287
See Macdonald, R. A., supra; and Loughlin, M., supra.
288
See for example, Bryan v. UK, supra; and the Alconbury case, supra.
203
In view of the dominance of the orthodox public administration and private
interest ideologies, it is not surprising that the public participation ideology in the
English legal framework for environmental decision-making has had to be
boosted with ‘imports’. The Aarhus Convention builds on existing environmental
impact assessment legislation,289 another example of an imported product of the
public participation ideology.290 The Convention has been criticised as vague
and unenforceable in many respects,291 but no doubt represents a significant
step in ensuring the widespread adoption of minimum requirements for public
participation in environmental decision-making, particularly in countries where
there are currently no domestic legal requirements to do so. Although the
Convention has done well by introducing new rights for wider public participation
in environmental decision-making, its requirements in respect of other aspects of
fair participation, i.e., in agenda and rule setting and facilitator/moderator choice
still fall short. Another limitation is that its requirement for public participation in
plans and programmes that relate to or affect the environment in tones that
sound more exhortatory than mandatory. Without opportunities for participation
in these areas, opportunities for participation in the decisions in respect of
specified activities may be too little too late.
The Environment Agency has generally met existing legal requirements in terms
of fair environmental decision-making, and in some respects has even
surpassed these requirements. It consulted the public widely, and to some
extent has been responsive to public feedback on the agenda and length of time
for consultation. In other areas, it may have to do more, although this is not
always possible in view of constraints on its legal powers and budgetary
allocations.292 For example, the options open to it and consequently its
consultees may be constrained by related past decisions (and non-decisions),
289
EC Directive 85/337, supra, as amended by Directive 97/11.
290
See Lord Hoffman’s obiter dictum in the Berkeley case, supra, at p. 430.
291
McAllister, S. T., “The Convention on Access to Information, Public Participation in Decision-
Making, and Access to Justice in Environmental Matters” [1998] Colorado Journal of International
Environmental Law and Policy 187, 188.
292
The Agency has considered it inappropriate to fund extended public participation out of its
existing resources as this would lead to a reduction in other necessary activity. It is looking into
recovering the costs from industry itself (See Environment Agency, Proposals for EPC, supra,
section 6.0).
204
e.g. the way nuclear technology has developed.293 Similarly, while it is possible
to invite public participation in the selection of facilitators/moderators, this would
add further to the costs of decision-making, which has to be funded by the
Agency, instead of by the applicants for authorisation. And while there is no
legal impediment to the Agency involving the public in selecting an independent
and impartial person to facilitate or moderate public participation, the
facilitator/moderator’s report cannot bind the Agency or the Secretary in any way
– no part of their statutory responsibility for decision-making may be fettered by
or delegated to another person or to the participants for independent
determination.
As I pointed out in Chapter 4, fairness in public participation only gives equality

of access to decision-making, but does not guarantee any real influence in
outcome. In order for the public participation in environmental decision-making
to make a positive contribution to the achievement of sustainable development, it
also needs to be guided by rules that facilitate competence. In Chapter 8, I
assess the competence of the public participation in the AWE, Magnox and
Sellafield Decisions as well as the extent to which the law and Agency practice
has facilitated (or impeded) competent public participation.
293
This was the observation made in Wynne, B., Rationality and Ritual: The Windscale Inquiry
and Nuclear Decisions in Britain, supra. He concluded that the Inquiry and nuclear decisions in
general were more like rituals conducted to rationalise a fait accompli than processes to look
rationally at issues afresh.
205
Chapter 8: The Competence of Public Participation in the
Authorisation of Radioactive Waste Disposal
In Chapter 7, I concluded that although the Environment Agency has generally

met existing legal requirements in respect of fair public participation in
environmental decision-making, the law and Agency practice has on the whole
fallen short of the fairness criteria, particularly in respect of agenda setting for,
and rules of participation; and the selection of a facilitator/moderator. In this
chapter, I consider the competence aspect of public participation in the
authorisation of radioactive waste disposal.
In line with my conclusion in Chapter 4 that public participation in environmental

decision-making has the potential to contribute to the forging of impartial values
and the construction of reliable knowledge, I will focus on the theoretical and
practical discourse. While in practice, discussions of fact and value are
intimately related and cannot take place independently of one another, I will, for
purpose of analysis only, deal with them separately.
That is not to say that explicative and therapeutic discourses are not important.
Communication and understanding cannot take place without participants having
a definitive understanding of the claims and counterclaims being made by one
another. This requirement is particularly relevant when participants do not speak
the same language. In the Magnox Decision for example, consultation
documents in respect of the Trawsfynydd and Wylfa sites in Wales were, for
economic reasons, printed in English, while only a summary of these documents
were printed in Welsh. Furthermore, while public meetings were held in English
and Welsh, only one Agency key speaker had made his presentation in Welsh,
with the others did theirs in English.1 These practices put Welsh participants
who were not conversant in English at a considerable disadvantage in terms of
competent participation. The power to define the meaning of words used by
participants in discourse also often carries with it a hidden power to define the
agenda for discourse.2 To the extent that therapeutic discourse is concerned
1
Environment Agency, Magnox Decision Document, supra, paras. P5.44 and P5.45.
2
For example, the power to restrict the definition of risk to refer only the statistical probability of
206
with the sincere expression of non-moral preferences in the face of competing
needs that are of the same ethical priority, it is an important contributor to
sustainable development. Furthermore, as Webler pointed out, expressions of
feeling can often be translated into factual and value claims and incorporated
into the appropriate theoretical and practical discourses.3 The importance of
these two types of discourse should therefore not be underestimated and,
accordingly, it is imperative that the rules relating to public participation facilitate
competence in the discourses.
(A) Theoretical Discourse
Statutory Requirements
Access to Information
As pointed out by Webler, a competent theoretical discourse would require that

participants be given access to all information they consider relevant to the
decision.4 The Environment Agency is required to provide certain information to
the public under the 1993 Act. Under s. 39 of this Act, it must keep copies of all
applications made to it,5 and all documents issued by it under the Act;6 as well
as all documents sent by it to any local authority in pursuance of directions of the
Secretary of State. Subject to grounds of commercial confidentiality or national
security, copies of such documents must be made available to the public.7 Each
fatality is effectively a power to exclude the qualitative dimensions of risks from consideration.
3
Webler, T., supra, p. 70. One example where this would be the case is the public perception of
risk of harm arising from the authorisation of radioactive discharges.
4
Ibid., p. 67.
5
Including supporting material, e.g., maps and photographs. See Environment Agency, Public
Registers of Environmental Information (Bristol: Environment Agency, undated), pp. 16-8.
6
These would include certificates of registration or authorisation, notices of variation or
cancellation, enforcement and prohibition notices, copies of annual reports of the Agency’s
monitoring programmes of authorised discharges of radioactive wastes, and detailed monitoring
data held by the Agency and monitoring data provided to the Agency by operators pursuant to a
condition of the authorisation (Ibid., loc. cit.).
7
In addition, local authorities are also required to make available for public inspection, copies of
207
local authority must also keep and make publicly accessible copies of all
documents sent to the authority under the 1993 Act, again subject to any need
for commercial confidentiality.8
There is however, no statutory requirement to publicise the existence of any

application or the availability of the relevant documents; members of the public
are expected to be vigilant and diligent by checking the public registers regularly
if they want to be kept informed about proposed authorisations to dispose
radioactive wastes.
The value of such registers is not free from controversy. Rowan-Robinson, et al,
for example, pointed out some shortcomings in the operation of the registers,
namely, the lack of awareness of the existence of these registers, the lack of
access to them in terms of geographical location and, as a matter of
administrative arrangement, the prohibitive costs of making copies, and the low
level of comprehensibility of the data. These shortcomings partly accounted for
the low level of their use.9 Overall, they considered that registers played a
limited role in promoting public participation, and were simply “an easy option for
seeming to meet the pressure for greater public access to environmental
information without actually achieving very much”.10
Aside from the requirements under the 1993 Act, there are other statutory
requirements to make environmental information accessible to the public. Under
reg. 3 of the Environmental Information Regulations 1992,11 a “relevant person”,
essentially defined as a public authority or any body who has responsibilities
relating to the environment and is under the control of public authorities, must
make available to members of the public on request, information relating to the
environment12 in their possession that is not already available in public registers,
all documents sent to them by the Agency unless they have been directed otherwise.
8
ss. 39(2) and (3).
9
Rowan-Robinson, J., et al, “Public Access to Environmental Information: a Means to What
End?” (1996) Journal of Environmental Law 8(1): 19.
10
Ibid., p. 37.
11
Hereinafter “1992 Regulations”. The regulations, as amended by the Environmental
Information (Amendment) Regulations 1998, implement EC Directive 90/313/EEC, supra.
12
Defined widely in reg. 2 as information relating to the state of any water or air, any flora or
208
unless such information must be withheld pursuant to the absolute exemptions in
reg. 4.13 While the Environment Agency is clearly such a relevant person, the
same cannot be said about either the AWE plc or BNFL.14 More importantly,
information relating to proposed measures or activities that adversely affect or
are likely to adversely affect the state of the environment, and information
relating to alternatives to such proposed measures and activities do not appear
to come within the definition of “information relating to the environment” and
hence within the scope of the ambit. Thus, much information that is potentially
relevant to the AWE, Magnox and Sellafield Decisions would not be made
available to the public under the Regulations. The shortcomings of EC Directive
90/313/EEC, from which the 1992 Regulations are implemented, have not gone
unnoticed; in preparation of the Community’s ratification of the A a r h u s
Convention, the Commission has prepared a proposal for a new directive to
enhance public access to environmental information.15
When s. 1 of the Freedom of Information Act 200016 comes into force, members
of the public will have a more general right to access information held by a
“public authority”. As defined in s. 3 and Schedule 1, Part VI, the Environment
fauna, any soil, any natural site or other land; and any activity that adversely affects or is likely to
adversely any of the foregoing; and any activity or measure designed to protect any of the
foregoing.
13
Some of the relevant grounds of confidentiality include situations where disclosure would affect
international relations, national defence or public security; or the deliberations of the authority; or
would involve the supply of documents under preparation or internal communications;
commercial or industrial confidentiality; and personal information the disclosure of which does not
have the consent of the person supplying the information.
14
Hughes argued that BNFL was a relevant person because it had public environmental
responsibilities (in the widest sense of the word “responsibilities”), and is under the control (in the
sense of regulatory oversight of public authorities. He did not explain however, why BNFL’s
environmental responsibilities should be considered “public”. See Hughes, D., “Freedom of
Access to Information on the Environment: Directive 90/313/EEC and the DOE Consultation
Paper “Public Access to Environmental Information held by Public Bodies” [1992] Land
Management and Environmental Law Report 4(3): 74, 77.
15
Commission of the European Communities, Proposal for a Directive of the European
Parliament and of the Council on public access to environmental information, COM (2001)402,
final, [2000] OJ C337E/156.
16
209
Agency is a public authority. As BNFL is wholly government-owned, the
requirements under this Act to make environmental information also extend to it
under this Act. Although AWE plc is not a public authority, the Ministry of
Defence, a public authority, is a shareholder and the owner of the AWE sites.
This right will still be subject to exemptions, but while some of these exemptions
are absolute,17 others will apply only if the public interest of withholding the
information outweighs the public interest of disclosure.18 As with the 1992
Regulations, the duty to allow access to information is passive: the information
requested must be sufficiently specific to enable the authority to identify and
locate it, so it is up to the member of public to specifically identify the relevant
information himself rather than rely on the authority to identify and present the
relevant information to him.19 There is also no requirement on the part of the
authority to acquire information it does not possess at the time of the request or
to update such information.
Knowledge Construction
In deciding whether to authorise the disposal of radioactive waste, the

Environment Agency is constrained by statutory provisions and guidance as to
the facts it must consider and how these facts are to be determined. Importantly,
while there is nothing to prevent members of the public from making
representations of fact to the Agency, or for the Agency to consider these
representations to the extent they are deemed relevant to the discharge its
functions, there is no requirement for the final selection and determination of
facts to be made communicatively through public participation.
For example, the Agency is required to take into account of any likely costs in
discharging its functions to make the contribution to sustainable development;20
and unless and to the extent it is unreasonable to do so, take into account the
likely costs and benefits of the exercise or non-exercise, and the manner of
17
s. 2(3).
18
s. 2(3).
19
s. 1(3).
20
1995 Act, s. 4.
210
exercise of its powers.21 The reference to likely costs and benefits, as opposed
to, say, potential or possible costs and benefits, arguably suggests that costs
and benefits that cannot be demonstrated on a balance of probability are to be
excluded from consideration. In addition, ministerial guidance to the
Environment Agency recommends that the Agency be guided, inter alia, by “the
views of the Government’s Chief Medical Officers, the Health and Safety
Executive and Commission and other interested bodies as to the effects on
human health”, and “evidence within the UK and internationally about proven
and likely impacts on the environment”.22
The Agency is also required to rely on “sound science”.23 The term is not
defined in the guidance, but the use of scientific knowledge is understood in A
Better Quality of Life as requiring the early anticipation of areas where scientific
advice or research is needed, the identification of “sources of information of high
calibre”, and where possible, the review of evidence “from a wide-ranging set of
viewpoints”,24 thereby favouring a more proactive critical analysis of the quality
of scientific advice drawn from a wide range of viewpoints as opposed to a
passive reliance in ‘official’ scientific advice.
When it is appropriate to do so, the Agency is also to apply the precautionary

principle.25 Following the reasoning of the High Court in the Duddridge case
however,26 since there is no comprehensive and authoritative definition of the
precautionary principle, the Agency can be expected to apply the principle as
interpreted in accordance with prevailing government policy, i.e., whenever there
21
Ibid., s. 39.
22
supra, Part II, para. 5.6(vi)(a). It should be noted that Part II of the Ministerial guidance has no
statutory basis. See also Department of the Environment, et al, Review of Radioactive Waste
Management Policy, supra, para. 50.
23
Department of the Environment, The Environment Agency and Sustainable Development, ibid.,
Part I, para. s. 9(iv).
24
section 4.1.
25
supra, Part II, para. 5.6.
26
Supra, p. 164.
211
is a “threat of serious or irreversible damage”,27 without holding out for
conclusive proof of the costs and benefits in the course of discharging its
functions or exercising its powers.
Common Law
In Board of Education v. Rice & Ors., Lord Loreburn LC suggested obiter that
whether a decision-maker was determining law or fact, it could obtain information
in any way it thought best, but that fairness required giving “a fair opportunity to
those who are in the controversy for correcting or contradicting anything
prejudicial to their view”.28 Thus, in Fairmount Investments Ltd. v. Secretary of
State for the Environment,29 the House of Lords quashed a Secretary of State’s
confirmation of a compulsory purchase order because the respondents had been
unfairly deprived of the opportunity to refute adverse inferences made by the
inspector about the foundations of their houses and the absence of financially
feasible alternatives to demolishing the houses after a site inspection at the end
of a public local inquiry; the respondents had no knowledge that these adverse
inferences had been drawn and the evidence that had emerged at the inquiry did
not suggest any issue of foundation inadequacy, or of whether rehabilitation was
feasible, and neither had these issues been raised at the inquiry.
While there is a need to provide an opportunity for parties affected to correct or

contradict adverse factual premises, there is no requirement to provide
“exhaustive information” for the purpose of facilitating consultation. In the
Greenpeace case for example, Potts J. held that the Secretary of State was
entitled to conclude that the operation of THORP would provide financial benefit
to BNFL and jobs for the local population without seeing an independent report
27
section 4.1. Emphasis mine.
28
Supra, p. 182.
29
Supra. See also, H Sabey & Co. Ltd. v. Secretary of State for the Environment & ors.. [1978] 1
All ER 586.
212
commissioned by BNFL and cited by in support of its claim that the operation of
THORP was financially viable. There was also no need for him to require the
disclosure of the report and details of BNFL’s commercial contracts to those he
was consulting.30
In the face of conflicting theoretical claims, an environmental decision-maker is

entitled to arrive at a final determination of the facts in a manner he considers
appropriate in the circumstances, as long as he does not act irrationally in the
Wednesbury sense in coming to the determination. This, as Lord Diplock
explained, meant that the administrative decision-maker was not permitted to
make a decision “which is so outrageous in its defiance of logic … that no
sensible person who applied his mind to the question to be decided could have
arrived at it”.31 In Mahon v. Air New Zealand Ltd. & ors.,32 he emphasised the
high degree of judicial deference towards administrative fact-finding:
the person making a finding in the exercise of … [an investigative] jurisdiction must base
his decision upon evidence that has some probative value … the decision to make the
finding must be based upon some material that tends logically to show the existence of
facts consistent with the finding and that the reasoning supportive of the finding, if it be
disclosed, is not logically self-contradictory.
As long as the environmental decision-maker acts within the bounds described

above, it is the duty of the courts when exercising its supervisory jurisdiction to
respect the fact that Parliament has entrusted the decision-maker and not the
court with the judgement and discretion to decide on the existence or otherwise
of a fact.33
The Bushell case shows the extent to which the courts will defer to
administrative determinations of fact, particularly in respect of policy-laden
30
Supra, pp. 371, at 378-9.
31
Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935, 951.
32
Mahon v. Air New Zealand Ltd & ors. [1984] 3 All ER 201, 210. Original emphasis.
33
Per Lord Brightman, Puhlhofer & anor. v. Hillingdon London Borough Council [1986] 1 All ER
467, 474.
213
decision-making. There, the House of Lords gave a number of reasons why
objectors to two proposed road schemes were not entitled to cross-examine
departmental experts on the methodology used to forecast traffic growth to show
that it was flawed. Firstly, a minister was entitled to consult the officials in his
department in the course of the decision-making process without having to
disclose to objectors what advice he had received from them.34 Secondly, the
issue of projecting traffic growth was a matter for experts – “no one who is not an
expert in this esoteric subject could form a useful judgment as to their merits”.35
Thirdly, the method of defining ‘traffic need’ was an essential element of
government policy to prioritise the construction of motorways by reference to
their traffic needs, and therefore more properly a subject for parliamentary
debate rather than for investigation by an inspector at a local inquiry whose
findings were necessarily limited to the material presented to him at that
inquiry.36 In any case, the objectors had been allowed to criticise the adopted
methodology and to present their own evidence in support of their criticisms.37
Thus, while participants in environmental decision-making are permitted to make
competing theoretical claims, the resolution of conflict between such claims is
strictly a matter for the administrative decision-maker, subject only to judicial
supervision in the Wednesbury sense.38
European Convention on Human Rights and Fundamental Freedoms
The entitlement to a fair hearing under Article 6(1) of the E C H R implies

procedural equality - a reasonable opportunity for those affected to present their
case under conditions that do not place them under a substantial disadvantage
in relation to those who oppose their case. As the European Court of Human
34
Supra, p. 102.
35
Ibid., p. 99.
36
37
Ibid., p. 100.
38
Supra, pp. 98-100, and 102.
214
Rights pointed out in McGinley & Egan v. UK39, this requires that the state,
unless with good cause, not prevent access to existing documents in its
possession or falsely deny the existence of such documents that will assist those
whose civil rights and obligations are being determined in presenting their case
effectively. However, since the fair hearing under Article 6(1) is tied to the
adversarial paradigm, it would appear that there isn’t any positive duty for the
state to volunteer any information that unknown to those affected, may be of
assistance to their case.
Although Article 6(1) of the ECHR does not make any provisions for the
competent of factual determinations relating to environmental decision-making,
the European Court of Human Rights may, when considering whether an
environmental decision interfering with a substantive human right is justified,
subject the factual basis of the decision to scrutiny and question the competence
of the findings of fact.
In Hatton & Ors. v. UK40 for example, the applicants lived in the vicinity of
Heathrow Airport, and complained of night noise nuisance from night flights,
resulting in sleep prevention and sleep disturbance. The court agreed that the
applicants’ right to respect for their private and family life had been interfered
with. Moreover, it considered the interference unjustified despite conceding to
the government a margin of appreciation in such matters involving socio-
economic policy. In particular, the court rejected the government’s claim that in
permitting the increase in night noise level, it had struck a fair balance between
interference with the applicants’ sleep and the national economic interest in the
increased night flights. According to the court, the government had not done
enough to investigate the nature and extent of the interference with the local
residents’ sleep; while studies had been carried out on the effects of the
increased noise level on sleep prevention, there had not been a similar study on
sleep disturbance.41 The subsequent commissioning of further research was
39
(1999) 27 EHRR 1, para. 86.
40
(2002) 34 EHRR 1. Hereinafter “Hatton case”.
41
Ibid., para. 103. In contrast, it will be recalled that judicial review on common law principles
215
also considered to have come too late to have any impact on the increased night
noise that had already been caused. The court also criticised the government
for not having done its own research to quantify the aviation or economic benefit
of increasing night flights; its uncritical reliance on research carried out by the
industry in this regard was not considered adequate and, in any event, came too
late to assist the government in its deliberations.42 Finally, in the absence of any
prior specific and complete study with the aim of finding the least onerous
solution as regards the interference with the applicants’ sleep, the court was not
prepared to accept that the “modest” steps taken by the government to mitigate
the interference constituted a fair balance.43
While the European Court of Human Rights’ intense scrutiny of the government’s
competence of fact-finding is laudable, the court, despite having noted that the
government had carried out a series of public consultations between 1987 and
1999,44 the European Court of Human Rights did not seem to attach any
significance to the contribution of this consultation to the quality of fact-finding.
Nor did the court attempt to evaluate the competence of such consultation in this
regard.
Aarhus Convention
The provision for access to environmental information is one of the major pillars
of the Aarhus Convention. These provisions go beyond the current legal
requirements45 for access to environmental information.46 It goes beyond
only requires that there be evidence of some probative value to support an administrative
determination of fact.
42
Ibid., paras. 100 to 102.
43
Ibid., paras. 105 and 106.
44
Ibid., paras. 25 to 65.
45
Under s. 74 of the 2000 Act, the Secretary of State is empowered to introduce subsidiary
legislation for the purpose of implementing the Convention. To date, none has been introduced.
46
Defined in Art. 2, para. 3 of the Convention as including not just information about the
environment, but also information on factors (e.g., radiation), or activities or measures affecting
216
existing legal requirements for access to environmental information; public
authorities will be required to take a proactive approach to the collection and
dissemination of environmental information.47 Thus, states must ensure that the
competent authorities “possess and update environmental information which is
relevant to their functions”.48 They must also ensure that there is “an adequate
flow of information to public authorities about proposed and existing activities
which may significantly affect the environment”49 and provide transparency and
effective accessibility in the way environmental information is made available to
members of the public,50 without having to declare their interest in the
information requested.51 In addition, it is not only the relevant ‘raw
environmental facts’ that must be made available; the state must also make
available to the public, its analyses of these facts, as well as any explanatory
material in its possession.52
In respect of environmental decisions about specific activities, beyond informing

the “public concerned” of the proposed activity, and the range of possible
decisions or the proposed decision,53 contracting states must ensure that the
competent authority provide the public concerned with access to available
information that is relevant to the environmental decision, including information
about the site, the proposed activity, the expected residues and emissions, a
description of the significant environmental impacts of the proposed activity, the
mitigation measures, the alternatives to the proposed activity considered, and
the main reports and advice issued to the authority.54
or likely to affect the environment; cost-benefit analyses or other economic analyses and
assumptions used in environmental decision-making; and the state of human health and safety,
condition of human life as they are affected or may be affected through the environment by
factors, activities or measures.
47
The issue of whether the State has a duty under the ECHR to monitor the applicants’ exposure
to radiation while they were stationed on Christmas Island was raised in McGinley & Egan v. UK,
supra, but owing to procedural reasons, no decision was given in respect of this issue.
48
Art. 5, para. 1(a).
49
Art. 5, para. 1(b).
50
Art. 5, para. 2.
51
Art. 4, para. 1(a).
52
Art. 5, para. 7.
53
Art. 6, para. 2.
54
Art. 6, para. 6.
217
Not all relevant information needs to be made available to the public; the usual
exemptions apply.55 For example, information that could adversely affect
national defence or public security;56 or commercial or industrial confidentiality
protected by law in order to protect a “legitimate economic interest”57 can be
withheld. Regardless of the legitimacy of these exemptions, the more liberally
they are interpreted and applied, the more access to information become
unequal amongst participants, and consequently the less competent any
theoretical discourse is likely to be.
There is no explicit provision in the Aarhus Convention for competent public

participation. As noted in Chapter 7 however, contracting states must allow the
public to submit in writing or, as appropriate, at a public hearing or inquiry with
the applicant, comments, information, analyses or opinions that it considers
relevant to the proposed activity58 and to take due account of the outcome of
public participation in the environmental decision.59 Arguably, this implies that it
is incumbent on contracting states to consider how the participation should be
structured to further the aim of allowing the public to participate constructively
(and not merely not in form as a ‘legitimacy-boosting’ measure). It is not clear
55
Art. 6, para. 6.
56
For example, the disposal of radioactive wastes arising from the dismantling of nuclear wastes
is a matter of “administrative agreement” between the Environment Agency and the Ministry of
Defence (See Environment Agency, AWE Decision Document, supra, paras 4.5.3 and 4.5.4).
57
Information relating to the economic benefits of a radioactive-waste producing practice could
arguably be a matter of commercial confidentiality. If so, then that issue in the Greenpeace case,
supra, pp. 370-1 and 378, would not be decided differently even if the Aarhus Convention, supra,
were applicable. In that case, Potts J. considered that there was no requirement to make public,
details of the commercial contracts between BNFL (the applicant for the authorisation of disposal
of radioactive wastes), and its customers, profitability figures, “and the like”, as well as the
contents of an independent report on the profitability of the THORP’s operations commissioned
by BNFL; and that the Secretary of State was entitled to decide, on the basis of BNFL’s
assertions concerning “contracts in hand, their profitability and their effect on employment in
Cumbria”, that the operation of the THORP was economically justified.
58
Art. 6, para. 7.
59
Art. 6, para. 8.
218
however whether the courts will accept that such an implicit requirement exists;
Jowitt J. for example, has suggested in respect of a Secretary of State’s public
consultation on a proposed aircraft noise reduction scheme that
if the decision-maker says he has considered and taken into account the representations
he has received his assertion must be taken at its face value unless there is material
60
before the court … effectively to impugn his assertion.
Pursuant to the 1993 Act, the Environment Agency maintains public registers of
information for inspection at the Agency’s eight Regional and 26 Area offices,
with each office holding the registers relating to its own geographical area.61
Even so, an individual requiring access to information held by the Agency could
still have to travel a considerable distance to get to the registers. The difficulty of
access is compounded by the availability of the registers only during the day,
and only on weekdays.62 Finally, applications for authorisation to dispose of
radioactive wastes are not easy for the technically uninitiated public to read, so it
is not clear that access to such information without assistance in interpreting
them will be helpful to members of the public planning to participate in
deliberation on the application.
Fortunately, much of the relevant information for the purpose of the Environment
Agency’s public consultation on its proposed decisions to authorise the disposal
60
R. v. Secretary of State for Transport, ex p. Richmond upon Thames London Borough Council
& ors. (No 4) [1996] 4 All ER 93, 107 (HC). Emphasis mine. In contrast, Article 9(1)(b) of the
Amended Proposal for a Council Directive on Assessment of the Effects of Certain Plans and
Programmes on the Environment (COM99(73), [1999] OJ C83/13) proposes to place the onus on
the decision-maker to state how the outcome of public consultation has been taken account of in
the environmental decision. While this may not guarantee a competent discourse, it at least
opens the competence of the discourse to scrutiny.
61
Environment Agency, Public Registers of Environmental Information, supra, p. 21.
62
Ibid., loc. cit..
219
of radioactive waste were made more comprehensible by the Agency’s
production of summary63 and explanatory documents to accompany the
information. The widespread circulation of these materials and their availability
on the Agency’s website significantly improved their accessibility. Information
provided in these documents went beyond current legal requirements.
The scope of the Environment Agency’s function of regulating the disposal of

radioactive wastes means that the radiological effects of the proposed disposal
of radioactive wastes on human health as well as on the environment, e.g.,
cancer and hereditary defects form one of its primary factual considerations.
Accordingly, I propose to use the theoretical discourse on this issue as an
indication of the competence of the theoretical discourse in respect of the
Agency’s decision-making as a whole. I begin with the theoretical claims in this
respect made or accepted by the Agency, then contrast these with those made
by those who oppose its proposed decisions in respect of the AWE, Magnox,
and Sellafield Decisions. I then examine how the conflict theoretical claims were
resolved and show that the final determination of ‘facts’ on this subject could not
be said to be the outcome of competent theoretical discourse.
As the Environment Agency itself noted, on the advice of the National

Radiological Protection Board,64 because cancer is a common illness with many
causes, it is extremely difficult to measure directly the extra cancer risk to
members of the public from exposure to low-level radiation.65 The difficulty is
aggravated by the time lag between exposure to radiation and a manifestation of
its radiological effects; the NRPB estimated that risks of radiation-induced cancer
become apparent in an exposed population about five to ten years after
63
In respect of the Sellafield Decision.
64
Hereinafter “NRPB”. The Board was created under statute to advance the acquisition of
knowledge about the protection of mankind from radiological hazards and to provide information
and advice to persons, including government departments, with responsibilities in the UK in
relation to protection from radiation hazards. Members of the Board are appointed by Health
ministers.
65
Environment Agency, Magnox Decision Document, supra, para. P2.82.
220
exposure, possibly sooner. The radiological effects of a proposed disposal of
radioactive waste are calculated using models developed by the NRPB and
MAFF using radiation risk factors recommended by the ICRP. These
recommendations were extrapolated from empirical studies of people exposed to
high doses of radiation, namely the Japanese atomic bomb survivors, and of
individuals occupationally exposed to low doses.66 Reviews of these studies by
the NRPB and the United Nations Scientific Committee on the Effects of Atomic
Radiation67 led the NRPB to conclude that “the weight of the evidence falls
decisively in favour of the thesis that at low doses and low dose rates,
tumorigenic risk rises as a simple function of dose”.68 According to the NRPB,
these models, were validated whenever possible, and showed that predictions
from prospective models had not been grossly in error, and tended to be
cautious. Reviews by the UNSCEAR of epidemiological studies on human
populations and the effects of ionising radiation on animal and plant cells also
supported the ICRP recommendations. In addition, although evidence was only
just beginning to emerge, experimental studies with cells and animals and
reviews of human, animal and molecular genetic data by the UNSCEAR also
supported a linear no-threshold relationship in relation to dose and heritable
effects.
Using the models that had been developed, it was estimated that there was a 1
in 20000 annual risk of contracting fatal cancer for a one-off radiation dose of 1
mSv to a population containing individuals of all ages;69 but a continuous
exposure of 0.3 mSv per year throughout a lifetime was sufficient to give rise to
an annual risk of fatal cancer of 1 in 100000.70 No estimates of non-fatal health
effects were given, but the Environment Agency was satisfied that the ICRP
66
Environment Agency, Magnox Decision Document, supra, Annex 1, Letter NR4.
67
Hereinafter “UNSCEAR”. The Committee was set up by the General Assembly with a
mandate to assess and report levels and effects of exposure to ionising radiation. Its members
are drawn from scientists representing 21 member states.
68
Environment Agency, Magnox Decision Document, supra, paras. P2.56, P2.69, and Annex 1,
Letter NR4.
69
Ibid., para. 2.3.2.
70
Environment Agency, Sellafield Consultation Document, supra, Appendix 9, para. A.9.8.
221
recommended dose limit of 1 mSv per year had made adequate allowance for
non-fatal cancers and possible hereditary effects.71
The estimates are of course not precise. According to the UNSCEAR, the
uncertainty in estimates of cancer risks was about four times higher or lower
than the actual risks for external radiation and “somewhat greater” for internal
radiations due to differences in radiation concentration in different parts of the
body leading to differences to doses to different body organs.72 The Agency
considered that these uncertainties had been adequately evaluated and
accommodated in the risk assessment and management process.73
Using an assessment methodology developed by the European Commission and

adapted by the NRPB for discharges from the AWE sites, the radiation exposure
to the critical dose group, i.e., members of public potentially receiving the
greatest radiation exposure74 arising from releases of gaseous and liquid
radioactivity at the limits requested in the AWE application was assessed to be
between 0.009 mSv and 0.02400 mSv per year in respect of AWE Aldermaston,
and between 0.000017mSv and 0.00063 mSv per year in respect of AWE
Burghfield.75 No estimates of the exposure arising from the disposal of solid
radioactive wastes were given although the Agency assured the public that they
would be below the relevant dose constraint and public limit.76 In respect of the
Magnox Decision, the power stations and research centre were individually
assessed for their radiological effects at the proposed authorised limits. The
assessed doses to the critical group ranged from 0.00013 m Sv per year for the
Berkeley Centre77 to 0.193 mSv per year for the Oldbury Power Station.78 As for
the Sellafield Decision, critical group doses were assessed to be somewhere
71
72
Ibid., paras. P2.41 and P2.60.
73
Ibid., para. P2.9.
74
Based on prevailing lifestyle habits including the type and quantity of food consumed. The
critical does group does not necessarily include those most vulnerable to exposure to radiation,
e.g., infants and children.
75
Environment Agency, AWE Consultation Document, supra, sections 4.3 and 4.4.
76
Ibid., para. 4.5. The constraints and limits are described in para. 2.7.
77
Environment Agency, Magnox Decision Document, supra, para. P6C.539.
78
Ibid., para. P6C.319.
222
between 0.260 mSv and 0.344 mSv per year for gaseous discharges and
between 0.130 mSv and 0.194 mSv per year for liquid discharges.79
A statistical probability of fatal cancer may seem tolerable to a specific individual,

but may be less so to society if its collective and cumulative effect is a large
number of fatalities and harm to people and wildlife all over the world for
thousands or millions of years. The Agency considered it not practicable to
provide prospective assessments for all localities; since doses were not
expected to be higher than the assessed critical group dose, the risks at these
localities were assumed to be lower than those for the critical group.80 Contrary
to the DEFRA’s Guidelines for Environmental Risk Assessment and
Management, which the Environment Agency co-authored, no indication or
estimate was given about the magnitude, spatial and temporal, of the
consequences of the proposed discharge of radioactive wastes, or the time lag
between exposure to radiation and the manifestation of the radiological effects.81
The Agency estimated however, that a year’s discharge of radioactive waste at

the authorised discharge limits proposed in the Magnox Decision would deliver a
total collective dose over a truncated 500-year period82 of about 4.7171 man Sv
in respect of the UK, and 26.16 man Sv in respect of Europe in respect of the
magnox power stations and the Berkeley Centre.83 Assuming the ICRP linear no
threshold dose-risk estimates to be correct, I have calculated that for each year
79
80
Environment Agency, Magnox Decision Document, supra, para. 6C.185.
81
Department of the Environment, Transport and the Regions, Environment Agency, and
Institute for Environmental Health, Guidelines for Environmental Risk Assessment and
Management (London: DETR, 2000), section 2.1.
82
Collective doses were truncated at 500 years only because estimates of doses beyond 500
years were considered too uncertain to be included. As such, the estimated collective dose bore
no relation to the actual temporal scale of the radioactivity (ibid. , para. P2.142); some
radionuclides can continue to be radioactive for thousands or millions of years before becoming
stable. For example, Carbon-14 has a half-life of 5730 years; Iodine-129, 16 million years; and
Uranium 4.5 billion years. These radionuclides are among those considered for discharge in the
Magnox and Sellafield Decisions.
83
Ibid. See para. P6B.34 for the collective doses of radioactive discharge from the operating
stations and Berkeley Centre. For the collective doses from the remaining stations, see paras.
6C.69, 6C.479, and 6C.519.
223
of discharge of radioactive waste at the authorised limit, there would be an
expected increase of 0.2 fatal cancers in the UK and 1.3 fatal cancers in Europe
in the following 500-year period.
For the Sellafield Decision, the collective doses for the UK, Europe and the world
were estimated at 4.3 man Sv, 72 man Sv, and 450 man Sv respectively,84
translating to an expected 0.2, 3.6, and 22.5 additional fatal cancers in the UK,
Europe and the world respectively in the following 500-year period.
As the RWMAC and NRPB pointed out however, these estimates of collective
doses were highly uncertain.85 They involve predictions about the size and
lifestyle habits of future populations for the next five hundred years, no mean
feat, and almost certainly to be wrong. Furthermore, they still do not tell us
anything about the non-fatal effects arising from the authorised radiation
exposure, some of which may be cumulatively transmitted genetically to future
generations, or the expected distribution of the collective dose within and across
generations.
As to the projected radiological effects on the environment, the Environment

Agency acknowledged that knowledge on the subject was limited. In the case of
the AWE Decision, it adopted a “precautionary” screening criterion of five
kilometres for the purpose of identifying European sites designated as Special
Protection Areas and Special Areas of Conservation under the Conservation
(Natural Habitats) Regulations 1994, which may be affected.86 Based on the
ICRP models developed for the protection of humans, and its assessment that
the environmental quality of the River Thames at Pangbourne showed “no
discernible effect on its biology” as a consequence of discharges of radioactivity
from the AWE,87 it concluded that “on balance”,88 it was satisfied that discharges
of radioactivity from the AWE at the proposed limits would not have any
significant effect on habitats, flora or fauna in either the Thames Basin Heath or
84
Environment Agency, Sellafield Rview Consultation Document, supra, paras. A8.38 and A8.39.
85
Environment Agency, Magnox Decision Document, supra, paras. P2.140 and P2.142.
86
No explanation was given as to how the criterion of five kilometres came to be selected.
87
88
Presumably, this means they were satisfied on a balance of probability.
224
the River Thames.89 No details were offered as to the reliability of extrapolating
from the ICRP model developed for human protection to environmental
protection or of the assessment that it had carried out.90
In the Magnox Decision, the Environment Agency acknowledged the inadequacy

of its earlier assumption that the standard of environmental control needed to
adequately protect mankind would ensure that other species would also not be
put at risk.91 Despite this acknowledgement, the Agency considered that
pending the development of a more systematic approach to radiological
protection for wildlife and its own research into the potential effects of radiation
on wildlife, it would continue to adopt the ICRP’s approach as the screening
criterion for further assessment of the radiological effects on wildlife.92 Based on
this admittedly inadequate approach, the Agency concluded that since the
assessed dose to a hypothetical person continuously inhabiting a location
representative of each designated conservation site was less than the dose limit
for the general public, the radioactive discharges at the proposed limits would
not be likely to have a “significant” effect at these sites.93 Further evidence to
support this conclusion came in the form of a study of the absorbed radiation
dose for some representative aquatic organisms believed to be the most
sensitive of aquatic organisms in the immediate Sellafield offshore area and for
the Cumbrian coastal area. The highest absorbed radiation dose estimated in
the assessment of 32 microgray per hour compared favourably with the
UNSCEAR reference dose rate of 400 microgray per hour for aquatic organisms
in general; below this reference rate, it was “generally considered that it is
89
90
In contrast, when the Environment Agency conducted a survey of organically bound tritium in
soils and watercourses near the AWE, its report was published and put on the public register.
See Environment Agency, AWE Decision Document, supra, para. 4.6.7.
91
Environment Agency, Magnox Decision Document, supra, para. P6A.70.
92
Ibid., loc. cit..
93
Ibid., para. P6A.73. The criteria for classifying a particular degree of harm as significant or
insignificant is based on the observation of the “relevant biological endpoints”, generally
accepted to include “morbidity, mortality, fertility, fecundity and mutation rate”. See Environment
Agency, The Sellafield Environmental Assessment, R & D Technical Report P430 (Bristol:
Environment Agency, 2001), in Environment Agency, Sellafield Consultation Document, supra,
Supporting Information, Item 98.
225
unlikely that there would be any significant effects on these organisms”.94 The
use of the “hypothetical human” as a generic screening criterion for wildlife with
different sensitivities to individual radionuclides was criticised by respondents to
public consultation.95
By the time it came to the Sellafield Decision, the Environment Agency finally
declared unacceptable, the ICRP recommendations that the adequacy of
protection of the environment from the radiological effects of the discharge of
radioactive wastes did not have to be considered independently of the adequacy
of protection of human health from the discharges.96 The Agency commissioned
an assessment of the radiological impact of proposed discharges on wildlife
species.97 This study assessed the radiation doses to a range of organisms
considered representative of those considered most exposed98 by virtue of being
in the immediate vicinity of the site. The highest absorbed radiation dose
estimated for representative marine organisms in the assessment, 15 microgray
per hour compared favourably with the reference dose rate of 400 microgray per
hour for aquatic organisms.99 Assessments of the internally absorbed and
external radiation dose rates to terrestrial species also showed that the highest
dose rate calculated was 0.045 microgray per hour, and compared favourably
with the IAEA criterion of 40 microgray per hour for plant or animal
populations.100
As was the case for the assessment of radiological effects of the proposed
94
Environment Agency, Magnox Decision Document, ibid., para. P6A.82. In the Sellafield
Consultation Document, supra, this reference rate was attributed to the IAEA (See Appendix 8,
para. A8.55).
95
Environment Agency, Magnox Decision Document, ibid., para. P6A.74.
96
Presumably the approach was considered unacceptable in the earlier decisions because better
data was not available then. Again, this demonstrates the tentativeness of scientific knowledge;
the acceptability of a methodology is not objective, but depends on what is achievable at a
particular point in time.
97
Ibid., Appendix 8, para. A8.8.
98
These were not necessarily the organisms that were most sensitive to radiation.
99
100
226
discharges of radioactivity on humans, no indication was given as to the spatial
or temporal scale of the radiological effects on wildlife arising from the proposed
discharges.
Members of the public rigorously challenged the validity of many of the scientific
claims on which the Environment Agency based its proposed decisions. Some
respondents to the Agency’s public consultation cast doubt on the quality of the
data collected on Japanese atomic bomb survivors101 and on the value of
extrapolating studies on exposure to a single large acute external dose of
gamma radiation to the effects of chronic low dose, low dose rate alpha and beta
radiation.102 In response, the Agency merely cited the NRPB’s advice that
adjustments had been made to allow for these uncertainties in the data to
improve its reliability, that in any event these uncertainties were likely to have
only a small impact on cancer risk estimates. The NRPB too admitted that the
atomic survivor study could not address chronic or internal doses, but
maintained that it could still provide some information on low doses. It also
pointed to epidemiological data on chronic low dose exposures (radiation
workers) and internal exposures (patients’ intake of radium for medicinal
purposes), admittedly less comprehensive in terms of statistical power as well as
in terms of the range of ages or sexes covered,103 as evidence that current risk
estimates were not substantially in error.
Respondents also questioned the reliability of the current risk models, noting that
these models could not explain the higher observed incidence of certain cancers
surrounding nuclear establishments.104 The Environment Agency, on the advice
of NRPB, acknowledged that there was a higher incidence of childhood cancer in
the vicinity of some nuclear sites, notably Sellafield and Dounreay, and in an
area of West Berkshire near to the Aldermaston and Burghfield nuclear sites.105
101
These included the under-representation of old and very young persons in the data, missing
early data since studies only commenced five years after the atomic explosions, and the
likelihood misdiagnosis of radiation-related illnesses in the early years after the explosions.
102
Environment Agency, Magnox Decision Document, supra, paras. P2.79, P2.80 and P2.85.
103
Ibid., paras. P2.81, P2.82, and P2.86.
104
Ibid., para. P. 2.73.
105
Ibid., para. P2.74.
227
It cited however the conclusion of the Committee on Medical Aspects of
Radiation in the Environment,106 in respect of the Sellafield excesses that “on
current knowledge, environmental radiation exposure could not account for the
excess”.107 COMARE was unable to offer any explanation for the phenomenon
either, but expressed the belief that “a mechanism involving infection may be a
factor affecting the risk of leukaemia and NHL [non-Hodgkin’s lymphoma] in
young people in Seascale”. It also concluded that radioactive releases from the
Dounreay site were not able to account for the excess cases in young people
living around Dounreay. As for the finding of an excess of leukaemia in the area
of West Berkshire, COMARE dismissed as statistically unreliable and likely to be
a chance finding commonly observed in studies involving small areas and small
numbers of cases. In any case the actual level of radiation was considered far
too low too account for any increase in cancer or leukaemia.108 The evidence
was also deemed inconclusive because other non-radiological factors could
possibly be at work to explain the inconsistency without discarding the model.109
In response to expressions of concern from respondents, the Environment

Agency, on the advice of the NRPB, also cast doubt on post-Chernobyl infant
leukaemia studies in Scotland and Wales that suggested that the long-term risk
of cancer from low-level radiation was as much as between 100 and 300 times
greater. The NRPB rejected these studies as unconvincing for a number of
reasons,110 and concluded that there was no scientific evidence that current risk
106
Hereinafter “COMARE”. The Committee was set up to provide ‘independent’ medical and
scientific advice to the government on the health effects of radiation in the environment and to
assess the adequacy of available data and advise on the need for further research. Its members
are medical and scientific experts recruited from universities, research and medical institutes.
107
Environment Agency, Magnox Decision Document, supra, para. 2.74.
108
Environment Agency, AWE Decision Document, supra, para. 4.5.7; and Magnox Decision
Document, ibid., para. P2.75. Emphasis mine.
109
The NRPB suggested that these factors might include population mixing, social class
structure and infective agents. It acknowledged however, that it was not in a position to
comment on these possibilities, and did not offer evidence in support of its suggestion. See
Environment Agency, Magnox Decision Document, ibid., para. P2.76.
110
Environment Agency, Magnox Decision Document, ibid., Annex 1, Letter NR1 and Letter
NR4. The NRPB criticised the potential for bias and confounding factors in correlation studies in
general; the low statistical power of the study owing to the small numbers involved; the
concentration on infant leukaemia rather than childhood leukaemia; the use of data from the
228
estimates could be wrong by the suggested magnitude.111 Yet, the same studies
were sufficiently convincing for the European Parliament to adopt a resolution
noting that “the accepted model of radiation risk was unable to predict the
illnesses now arising as a result of [post-Chernobyl] radiation”,112 and calling on
the European Commission to “arrange an epidemiological study of the effects of
Chernobyl throughout Europe as a whole”, and the IAEA, UNSCEAR, ICRP and
European Atomic Energy Community113 to re-examine the risk model.114
Importantly, while studies casting doubt on the ICRP risk models had been
referred to the NRPB for critique, the Agency appears not to have considered the
need for the authors of these studies to respond to the NRPB’s comments.115
whole of Scotland and Wales rather than from south-west Scotland and north Wales; and the
lack of support for the findings from other studies. It added that scientific reports claiming a
much higher risk of cancer after exposure to low-level radiation were generally extreme positions
usually using highly selected information and often poorly designed studies. In contrast, it
considered that the “international scientific consensus on radiation risk had been built over many
years by large numbers of scientists working in different countries who had considered the
strengths and weaknesses of all available evidence before reaching conclusions” (See paras.
P2.43 and P2.44). Unlike the European Parliament, it did not express any need to re-examine
the risk model. It should be pointed out that criticisms have in turn been levelled against the
NRPB’s comments. These criticisms can be found on the website of a campaign group advised
by one of the two authors of the study in question -
http://www.llrc.org/wobblyscience/subtopic/christopherrobinissayinghisprayers.htm; online as at 3
June 2002. These responses were not referred to by the Agency or the NRPB.
111
Ibid., Annex 1, Letter NR4.
112
European Parliament resolution on the problem of nuclear safety fifteen years after the
Chernobyl accident, and its health consequences, Minutes of 03/05/2001 - Provisional Edition,
B5-0321, 0322, 0323, 0324 and 0325/2001, Preamble para. E.
113
This European Community was created by the Treaty Establishing the European Atomic
Energy Community 1957 (298 U.N.T.S. 3, hereinafter “EURATOM Treaty”), to assist in the
development of nuclear energy industry in Europe through the cooperation of its Member States.
114
European Parliament resolution on the problem of nuclear safety fifteen years after the
Chernobyl accident, and its health consequences, supra, para. 11. The Agency did not refer to
this resolution. Perhaps it did not know of the resolution or didn’t deem it relevant to its
decisions.
115
In fact, critics have responded to the NRPB’s comments. The responses can be found on the
website of a campaign group advised by one of the two authors of one of the studies in question
- http://www.llrc.org/wobblyscience/subtopic/christopherrobinissayinghisprayers.htm; online as at
3 June 2002. Neither the Agency nor the NRPB made any reference to these responses.
229
Presumably, this has to do with the fact the NRPB is the legislative established
advisor on nuclear safety matters.
Respondents also questioned the adequacy of the dispersion model for the
purpose of assessing doses. They noted that HMIP had recommended a
different model for industrial plume modelling in determining short-term or near
field pollutant concentration and uptake by plants.116 The Environment Agency
maintained that its choice of the “’older generation’ model” with a better track
record was more appropriate in the circumstances. The NRPB had also advised
that the model recommended by the Inspectorate was also not without its
shortcomings. In any case, within the weather conditions in the context of the
UK, the differences in results for the two types of models were small.117
The survey on lifestyle habits of the local population, on which dose

assessments were based in the Magnox Decision, were also criticised.
Respondents argued that the MAFF habit surveys had been flawed in the past,
and argued for a precise intake survey to be taken rather than for unexplained
extrapolations to be made from a national survey taken with various assumptions
applied.118 The Environment Agency rejected these criticisms, noting that the
consumption data were based on extensive national surveys collected in 1991/2
and 1996, and conservatively, the top end of the distributions for the various
foodstuffs had been used.119 In the Sellafield Decision, seafood consumption
rates were based on data more recently recorded in West Cumbria as well as on
observations at other coastal communities around nuclear sites in the UK, but
terrestrial food consumption was still based on high-rate consumers from
national survey data.120
In respect of environmental impacts on wildlife, respondents criticised the

Environment Agency’s assessments in the Magnox Decision for failing to take
116
117
Ibid., paras. P6C.194 to P6C.198.
118
119
Ibid., paras. P6C.213 and P6C.214.
120
Environment Agency, Sellfield Review Consultation Document, supra, Appendix 8, para.
A8.18.
230
account of the particular location of breeding fish as well as the congregation of
sea bass at outfalls. There was concern that the continued discharge of cooling
water at higher than ambient temperatures from the operating magnox power
stations could alter the metabolic rate of fish and alter the rate at which they take
up radionuclides.121 There had also been no assessment of the effects of the
upstream and downstream magnox plants on relevant conservation areas.122
The Agency accepted that water temperature could influence the uptake of
radionuclides by fish, but countered that there was no evidence to suggest that
the increase in uptake had a harmful effect on populations of fish.123 As for the
effects of the upstream and downstream plants, the Agency had included these
as part of its ongoing national review of the impact of permitted discharges on
conservation sites, and at that stage was not aware of significant detriments to
the environment in the neighbourhood of these sites.124
(B) Practical Discourse
Statutory Requirements
The Environment Agency is conferred by statute, a structured discretion to

exercise value judgement in the course of its environmental decision-making
relating to the authorisation of the disposal of radioactive wastes. The statute
builds into its provisions, guidelines and standards, certain value judgements
that do not seem to have been competently arrived at, nor are there any
provisions for a competent practical discourse to forge impartial value
judgements that promote the common interest.
As mentioned earlier, the 1995 Act requires the Agency to take into account any
likely costs in discharging its functions to make the contribution to sustainable
development;125 and unless and to the extent it is unreasonable to do so, to take
121
Environment Agency, Magnox Decision Document, supra, paras. P6A.86 and P6A.87.
122
Ibid., para. P6A.96
123
124
125
s. 4.
231
into account the likely costs and benefits of the exercise or non-exercise, and the
manner of exercise of its powers.126 While neither the 1995 Act nor the 1993 Act
require the balancing of costs and benefits as such, it had been held in the
Greenpeace case that section 13 of the 1993 Act should be construed, in
accordance with Articles 6 and 13 of Council Directive 80/836/Euratom, to
require, for the purpose of authorising the discharge of radioactive wastes, prior
consideration of the justification of particular practices by ensuring that the
benefits produced to the exposed individuals or to society outweighing the
radiation detriments.127 Directive 80/836/Euratom has been superseded by the
Council Directive 96/29/Euratom of 13 May 1996, laying down basic safety
standards for the protection of the health of workers and the general public
against the dangers arising from ionising radiation.128 Unlike its predecessor,
which required justification for all practices, the new Article 6 requires justification
only for new classes or types of practice resulting in exposure to ionising
radiation; existing classes or types of practice “may be subject to review as to
justification whenever new and important evidence about their efficacy or
consequences is acquired”.
The Ionising Radiation Regulations 1999129 and the Radioactive Substances

(Basic Safety Standards) (England and Wales) Direction 2000130 implement
aspects of the BSS Directive 1996. In particular, the BSS Direction 2000
requires the Environment Agency, when discharging its functions under the 1993
126
s. 39.
127
Greenpeace case, supra, p. 368. It would seem, according to Turner J. in R. v. Environment
Agency, ex p. Emanuela Marchiori & NAG Ltd [2001] EWHC Admin 267, para. 41, that the
requirement for justification applies only to civilian and commercial nuclear practices. If this view
prevails, then it would have no application to the AWE Decision. His Lordship’s decision has
now been thrown into doubt. On appeal, two of the three appeal judges expressed the view that
even military practices had to be justified under the Euratom Treaty, but did not expressly
overrule Turner J. on this point because the issue was obiter to the appeal judges’ unanimous
decision to dismiss the appeal - on the facts the Environment Agency had considered and
weighed the benefits and detriments of the practice associated with the discharge of radioactive
wastes and therefore justified the practice. See Emanuela Marchiori v. Environment Agency,
supra, paras. 59 and 61.
128
[1996] OJ 159/1. Hereinafter “BSS Directive 1996”.
129
SI 1992/3232.
130
Issued under s. 40(2) of the 1995 Act. Hereinafter “BSS Direction 2000”.
232
Act, to ensure that exposures to individual members of the public and of the
population as a whole resulting from the disposal of radioactive wastes are kept
as low as reasonably achievable,131 economic and social factors being taken into
account,132 and to have regard at the planning stage in radiation protection to the
following maximum dose constraints to individuals, namely a maximum dose of
0.3 mSv per year from a single new source of radiation and 0.5 mSv per year
from a single site.133 The sum of all man-made sources of radioactivity other
than medical exposure must also not exceed the dose limit of 1 mSv per year.134
The dose constraints and limits135 are based on the recommendations of the
ICRP and accepted by the government on the advice of the NRPB,136 without
any requirement for public participation.137 According to the NRPB, the limit took
into consideration a number of factors, including natural background radiation
and the health effects of continued exposure to additional radiation over a
lifetime.138 It is clear that these limits are partly a matter of value judgement, as
Clarke, the Chairman of the ICRP himself acknowledged
131
Hereinafter “ALARA”.
132
BSS Direction 2000, Art. 2(1)(a). This requirement is in accordance with the BSS Directive
1996, Art. 6.
133
BSS Direction 2000, Art. 2(2). In accordance with the BSS Directive 1996, Art. 7.
134
BSS Direction 2000, Art. 2(1)(b). In accordance with the BSS Directive 1996, Art. 13.
135
The difference between a constraint and a limit was explained by the NRPB. Exposures
above dose limits would be unacceptable on any reasonable basis. Below dose limits,
exposures would be acceptable, i.e., would not cause concern, if they are below dose
constraints; but only tolerable, i.e., not welcome but can reasonably be tolerated, if they are
above dose constraints. See Environment Agency, Magnox Decision Document, supra, para.
P3.61.
136
Environment Agency, Magnox Decision Document, ibid., para. P2.30.
137
See the Health and Safety at Work Etc. Act 1974, s. 50(3) and the 1995 Act, s. 40. There is
on the other hand, a duty on the part of the Health and Safety Commission to consult the NRPB
and any government department or other body that appears to it to be appropriate, prior to the
proposal of these regulations for promulgation by the Secretary of State. It should also be
pointed out that notwithstanding the lack of a legal requirement for public consultation; one did
take place before the BSS Direction 2000 was issued. The public consultation focussed more on
the implementation mechanism for the standards established under the BSS Directive 1996,
rather on the appropriateness of the standards themselves. There is also no legal requirement
for public participation in the preparation of EU Directives.
138
233
The aim of an appropriate, rather than the best possible, standard regardless of cost
cannot be achieved on the basis of scientific concepts alone. The Commission must
therefore supplement its scientific knowledge with value judgements on the relative
importance of different kinds of risk and balance the risks and benefits, and it must make
139
clear how these judgements are made.
Admittedly, the standards recommended by the ICRP are ‘generous’ compared

to the Health and Safety Executive’s view, accepted by the Environment
Agency,140 to the effect that
[b]roadly, a risk of death of 1 in 1000 per annum is about the most that is ordinarily
accepted under modern conditions for workers in the UK … and it seems reasonable to
adopt it as the dividing line between what is just tolerable and what is intolerable … If the
maximum tolerable risk for any worker is set at around 1in 1000 per annum, it seems right
to suggest that the maximum level that we should be prepared to tolerate for any individual
member of the public from any large scale industrial hazard should be not less than ten
141
times lower, i.e. 1 in 10,000.
Yet, it is not clear why the ICRP, or for that matter, the NRPB, for all its technical
eminence, should be considered particularly qualified to exercise the value
judgement that it is tolerable to expose the public to the equivalent of an
additional 1 in 20000 risk of fatal cancer from all man-made sources of
radioactivity other than medical exposure.142
Common Law
There is no legal duty to consult members of the public in respect of proposed

legislation of environmental standards that embodies value judgements, even if
such legislation plainly affects the rights or interests of individuals,143 let alone
139
Clarke, R. H., “Conflicting Scientific Views on the Health Risks of Low-level Ionising
Radiation” (1998) Journal of Radiological Protection 18: 159, 159.
140
141
Health and Safety Executive, The Tolerability of Risk from Nuclear Power Stations (London:
HMSO, 1988), para. 122 and 124. Emphasis mine.
142
On the basis of the recommended dose limit of 1 mSv per year in ICRP 60 and assuming the
reliability of the ICRP’s linear no-threshold dose-risk model.
143
Bates v. Lord Hailsham of Marylebone & ors., supra, p. 1024.
234
any duty to facilitate any particular mode pf participation. As Craig explained,
the presumption that a “hearing” takes place indirectly through the operation of
the principles of representative democracy, namely parliamentary debate, is
questionable both in principle and in reality.144 In the context of the authorisation
of disposal of radioactive wastes, the setting of dose limits and dose constraints,
whether via EU directive or a domestic statute, in fact involves ethical
judgements about the order of needs to be met. Yet, it has been held that in this
regard, ministers are entitled to follow the advice of HMIP, the NRPB and ICRP
and defer to their value judgement that compliance with certain recommended
dose limits and targets will protect individual members from unacceptable levels
of risk.145
The requirement for competent practical discourse in specific instances of

environmental decision-making also has no place in common law. As the
Greenpeace case shows, subject to the requirements of procedural fairness, the
appropriate mode of public participation in an environmental decision is a matter
for the discretion of the environmental decision-maker, to be exercised within the
bounds of Wednesbury reasonableness.146 Within Wednesbury
reasonableness, the resolution of conflicting normative claims, and the exercise
of value judgements, are also a matter for the administrative decision-maker. As
Lord Diplock pointed out in Council of Civil Service Unions v. Minister for the
Civil Service, the judicial review ground of unreasonableness applies, as much to
a decision that is “outrageous in its defiance of … accepted moral standards” as
it does to one that is outrageously illogical.147 Thus, value judgements by the
decision-maker can only be impugned when it is one that “no sensible person
who had applied his mind to the question to be decided could have arrived at
it”;148 the fact that the court would have decided the question differently, or that
there is a more competent procedure for arriving at a decision is irrelevant in this
regard.
144
Craig, P., Administrative Law, supra, p. 380.
145
Greenpeace Case, supra, pp. 374-5.
146
Ibid., pp. 382-4.
147
Supra, p. 951.
148
Ibid., loc. cit..
235
Where the limits of reasonableness are drawn will depend on the particular
circumstances at hand; factors affecting the intensity of judicial scrutiny include
the nature of the interest interfered with, the degree of interference with the
interest, and whether the degree of policy content in the decision.149 Thus, the
courts will be particularly vigilant where a decision has the potential to seriously
interfere with a fundamental human right such as the right to life,150 right to
private and family life,151 or freedom of speech152 is in issue. On the other hand,
the courts will exercise restraint in respect of policy-laden decisions. As Laws
LJ explained, there are a number of reasons for this judicial position:
The first, and most obvious, is that the court is unequipped to judge such merits or
demerits. The second touches more closely the relationship between the elected and
unelected arms of government. The graver a matter of State and the more widespread its
possible effects, the more respect will be given, within the framework of the constitution, to
the democracy to decide its outcome. The defence of the realm, which is the Crown's first
duty, is the paradigm of so grave a matter. Potentially such a thing touches the security of
everyone; and everyone will look to the government they have elected for wise and
effective decisions. Of course they may or may not be satisfied, and their satisfaction or
otherwise will sound in the ballot-box. There is not, and cannot be, any expectation that
the unelected judiciary play any role in such questions, remotely comparable to that of
government. The position is not unlike that taken by their Lordships' House in relation to
attempts to challenge government decisions of what is sometimes called "macro-
153
economic" policy…
Indeed, according to Laws LJ., the unreasonableness of a decision concerning

“high policy” was not even amenable to judicial review unless it involved actual
bad faith on the part of the ministers.154
In the specific context of whether to authorise the disposal of radioactive wastes

involves a low degree of interference with any one individual’s right to life. Such
decisions are policy-laden, and as is the case of the AWE Decision, may also be
149
Per Sir Bingham MR in R. v. Ministry of Defence, ex p. Smith, [1996] QB 517, 556.
150
Per Lord Bridge of Harwich in Bugdaycay v. Secretary of State for the Home Department
[1987] AC 514, 531.
151
R. v. Ministry of Defence, ex p. Smith, supra.
152
Brind & ors. v. Secretary of State for the Home Department [1991] 1 All ER 720.
153
Emanuela Marchiori v. Environment Agency, supra, para. 38.
154
Ibid., para. 40.
236
defence-operation related. This means that one can expect a high degree of
deference when it comes to judicial scrutiny of ethical judgements made in the
course of the AWE, Magnox, and Sellafield Decisions. In this respect, the
Environment Agency can expect the courts to defer to its decision, as long as it
can be justified ‘reasonably’ in the widest sense of the word; there is no question
whatsoever of the Agency being legally required to facilitate competent public
debate or discussion to forge values in the common interest.
The environmental decision-maker’s wide discretion in ethical judgements in

relation to the justification of a practice has also recently been confirmed in R.
(Friends of the Earth Ltd. & Greenpeace Ltd.) v. Secretary of State for the
Environment, Food and Rural Affairs & Secretary of State for Health. In that
case, Collins J. considered obiter, that the Secretaries of State, having
determined the net present value of the Sellafield MOX Plant (SMP), were
entitled to decide that
other factors which have not been taken into account, … can tip the balance in favour of
SMP. In addition, they must put social and other benefits in respect of which they have a
155
wide discretion into the balance.
European Convention on Human Rights and Fundamental Freedoms
Under the ECHR, environmental decision-makers do not have an unfettered

discretion to make any value judgements they please. There are restrictions in
the way ethical judgements may be exercised by an environmental decision-
maker when balancing an individual’s substantive156 human right and the interest
of the wider community. None of these restrictions however, require the
decision-maker to include public discourse as the means for forging and
articulating values in the common interest.
Aside from Article 2 of the E C H R, which guards against the intentional

deprivation of life, and is therefore unlikely to be applicable to environmental
155
[2001] EWHC Admin 914, para. 17.
156
As opposed to procedural human rights under Art. 6.
237
decision-making except in extreme circumstances, the substantive human rights
that are potentially relevant in environmental decision-making, namely Article 8
on the right to respect for private and family life, home and correspondence; and
Article 1 of Protocol No. 1 on the right to peaceful enjoyment of one’s
possessions, are not absolute in the sense that the ECHR provides that they
may be justifiably interfered with where the interests of the wider community
warrant such interference.
For example, an interference with the right to respect for private and family life
will not give rise to an infringement of Article 8 if the interference is
necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for the
157
protection of health or morals, or for the protection of the rights and freedoms of others.
Similarly, an interference with the right to protection of property will not give rise
to an infringement of Article 1 of Protocol 1 if the interference is in the public or
general interest.158 Clearly, such a balancing act between an individual’s human
right and a community’s wider interest calls for the exercise of a difficult ethical
judgements that the European Court of Human Rights is unlikely to be any more
competent that a national competent authority in making. This difficulty was
recognised by the European Court of Human Rights. It noted in Powell &
Rayner v. UK:159
regard must be had to the fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and … the State enjoys a
certain margin of appreciation in determining the steps to be taken to ensure compliance
with the Convention …
It is certainly not for the Commission or the Court to substitute for the assessment of the
national authorities any other assessment of what might be the best policy in this difficult
social and technical sphere. This is an area where the Contracting States are to be
157
Art. 8(2). Emphasis mine.
158
Contra the requirements of the BSS Directive 1996 which requires the weighing of all benefits
and detriments.
159
(1990) 12 EHRR 355, para. 41.
238
160
recognised as enjoying a wide margin of appreciation.
Just how wide a margin of appreciation the European Court of Human Rights will
concede to a national authority in the latter’s exercise of ethical judgement in this
regard will vary with the nature of the social aim pursued as well as with the
particular interference involved.161
The ECHR case-law shows that where it has been held that the State, despite
being conceded a margin of appreciation, has failed to strike a fair balance, it
has generally done so on the grounds of inadequate fact-finding or mitigating
measures, but rarely if ever, that the state had simply got its value judgements
wrong manifestly wrong.
For example, in the celebrated case of Lopez Ostra v. Spain,162 the European
Court of Human Rights held that the applicant’s rights under Article 8 of the
ECHR had been unjustifiably interfered with. The court conceded to the
government, a margin of appreciation in balancing the economic interest of the
town with the applicant’s right, and held the interference unjustified only because
it considered that the government had unnecessarily prolonged the applicant’s
suffering by failing to take steps to protect the applicant’s right, and by taking
steps to challenge the domestic court’s temporary order of closure of the plant,
resulting in the suspension of the order.163
In Guerra & Ors. v. Italy,164 the European Court of Human Rights implicitly
accepted the state’s conclusion that the economic benefit from the operation of
the waste treatment, and the chemical factory respectively, outweighed the
interference with the applicants’ rights under Article 8. Like the Lopez Ostra
case, the court did not challenge the state’s conclusion that the social benefit
outweighed the cost to the individual. Instead, it focussed on the government’s
160
Ibid., para. 43.
161
Leander v. Sweden (1987) EHRR 433, para. 59.
162
(1994) 20 EHRR 277.
163
Ibid., paras. 56, 57 and 65.
164
(1998) 26 EHRR 357, para. 60.
239
failure to take or avoid certain actions that could have mitigated the interference
of the applicant’s human rights.
Finally, there is Hatton & Ors. v. UK. There, the European Court rejected the
government’s claim that it had struck a fair balance between interference with
the applicants’ sleep and the national economic interest in the increased night
flights, but only because the government had not done enough to investigate the
nature and extent of the interference with the local residents’ sleep.
The judicial deference to administrative ethical judgement in decision-making is

not totally unwelcome. A more stringent judicial scrutiny of state action may not
necessarily lead to more impartial value judgement contributing to sustainable
development. The ECHR’s concern is with the protection of individual human
rights that may or may not correspond with an overriding priority for the meeting
of basic needs or the safeguarding of natural resources for future generations.
The increased scrutiny when human rights are interfered with will only lead to an
elevation in their importance when ethical judgements are made in the course of
environmental decision-making irrespective of whether protection of such rights
are compatible with the goals of sustainable development in specific cases.
In the context of the AWE, Magnox, and Sellafield Decisions for example, the
refusal of authorisation or the authorisation subject to onerous conditions or
limits of radioactive waste disposal may conceivably amount to an infringement
of the right to economically exploit property.165 On the other hand, there is very
little likelihood that the grant of such an authorisation infringes any substantive
human right. Although the link between environmental protection and human
rights has been recognised by the European Court of Human Rights since the
Powell & Rayner case,166 this association may not necessarily protect an
165
See for example, Fredin v. Sweden (1990) 13 EHRR 784, paras 48 and 55, where the
European Court of Human Rights accepted that the revocation of an applicants’ licence to exploit
a gravel pit on the applicants’ property was an interference with the use of their property.
166
Supra. It should be mentioned that the European Commission of Human Rights had
acknowledged such a link much earlier in the case of Arrondelle v. UK (1983) 5 EHRR 118. That
case was also concerned the possible intervention of the private life of an applicant who lived
between an airport runway and a road as a result of noise pollution from excessive aircraft noise
and noise from the motorway. The Commission found that the complaint was admissible, but the
240
individual from being exposed to additional risk arising from exposure to
radioactive wastes. As the Balmer-Schafroth case shows, exposure to
radioactivity within authorised limits has to be sufficiently serious, specific and
imminent danger to an individual’s personal integrity before it can even amount
to a determination of his civil rights,167 let alone an infringement of substantive
human rights.
Aarhus Convention
The Aarhus Convention does not prescribe any requirement for competent
practical discourse as such. As mentioned earlier however, the Convention
requires that contracting states allow the public to submit comments, information,
analyses or opinions that the public considers relevant to the proposed
activity,168 and more importantly, take due account of the outcome of such
participation in the environmental decision.169 Whether this amounts to anything
in view of the dicta of Jowitt J. in R. v. Secretary of State for Transport, ex p.
Richmond upon Thames London Borough Council & ors. (No. 4)170 remains to
be seen.
There are many ethical judgements involved in considering whether to authorise

the disposal of radioactive wastes, but not all of these are within the scope of the
Environment Agency’s functions. For example, it is the duty of the Agency to
comply with the dose limits and to have regard to dose constraints set out in the
BSS Direction 2000 issued under s. 40(2) of the 1995 Act, in accordance with
the BSS Directive 1996. Such standards were adopted by the government
following the advice of the NRPB, and in accordance with ICRP
case was subsequently settled between the parties.

167
Supra, para. 50. The case dealt with the right to a fair hearing by an independent and
impartial tribunal in the determination of civil rights under Article 6 of the ECHR.
168
Art. 6, para. 7.
169
Art. 6, para. 8.
170
[1996] 4 All ER 93, 107.
241
recommendations, ostensibly on the basis of their scientific expertise, but clearly
not without considerable ethical judgement on their part as to what risks are
tolerable and what are not, for the present and future generations on whom
these risks will be imposed.
Since October 2000, it has also not been the Environment Agency’s function to
consider the issue of whether a practice is justified, i.e., whether the benefits
from the activity that produces the radioactive wastes outweigh the detriments
caused by such activities, including the radioactivity discharged in the course of
disposal of radioactive wastes - this duty has passed to the Secretary of State.171
Even when it had been the Environment Agency’s function to weigh the benefits
and detriments, the justification for the practice was ultimately be established in
the light of the pre-determined government.172 In the AWE Decision for
example,, the Agency had listed what it considered to be the benefits173 and
detriments174 associated with the operation of the AWE,175 noted that “the
balancing of benefits and detriments was already taken into account in the
government’s policy”.176 Having also considered each consultee’s view, it not
surprisingly concluded that “the practice of designing, constructing, maintaining
and dismantling nuclear warheads at the AWE is justified in the light of the
Government’s policy”.177 The Agency’s approach is understandable considering
171
172
173
Namely, delivery of the UK defence requirement for an independent nuclear deterrent,
reduction of safety risks by decommissioning redundant plants, reducing proliferation risks by
decommissioning old nuclear weapons, provision of primary employment of 4500 staff and
secondary employment from investment in the local economy, and development of unique
international science and technology.
174
Namely, radiation doses to workers employed at the sites, radiation doses to members of the
public arising from discharges of radioactivity, social concern about public radiation exposure and
cancer in West Berks, the continued accumulation of radioactive wastes, and operating costs to
the taxpayer.
175
Environment Agency, AWE Consultation Document, supra, paras. 2.5.6 and 2.5.7.
176
Ibid., para. 2.5.8. In fact, there did not seem to be any indication in the Ministry of Defence’s
White Paper, Strategic Defence Review, supra, that the government carried out any balancing
exercise of that sort.
177
Environment Agency, AWE Decision Document, para. 4.10.7.
242
that it was in reality not in a position to pass judgement on the merits of the
government’s defence policy, and was primarily more concerned with minimising
the wastes produced and improving regulatory control over its disposal rather
than examining the needs served by Trident production.178 This does not detract
from the fact however, that in the absence of a reasonably practical discourse on
the issue, it is difficult to be confident that the Agency had weighed these
benefits and detriments impartially and exercised its ethical judgement in the
common interest.
In the Magnox Decision, the Environment Agency’s role in justifying the practice
of nuclear power production was only to make recommendations to the
Secretary of State as to whether the benefits of continued operation or
decommissioning outweighed the detriments. A number of detriments were
identified in respect of the practice of operating some of the magnox power
stations,179 namely exposure of members of the public, workers,180 and other
living organisms,181 to radioactivity arising from discharges and accumulation182
of radioactive wastes,183 and to direct radiation;184 the production of spent fuel
which were then reprocessed with consequent detriments arising from the
reprocessing;185 the risks to workers and members of the public arising from
accidents in the course of operation of the nuclear reactor186 and transportation
of radioactive materials;187 the risks associated with nuclear proliferation and
terrorism;188 health detriments associated with uranium mining and milling
outside the UK;189 non-radiological effects on marine and estuarine
178
Ibid., para. 4.10.8.
179
Similar approaches were taken in respect of the stations in the process of decommissioning
and the Berkeley Centre. The benefits and detriments identified can be found in Environmental
Agency, Magnox Decision Document, supra, paras. P6B.247 to P6B.233.
180
Ibid., para. P6B.70.
181
Ibid., P6B.49.
182
183
Ibid., paras P6B.35, P6B.38, P6B.115 and P6B.118.
184
Ibid., paras P6B.38 and P6B.42.
185
186
187
188
189
243
organisms;190 light pollution,191 odour,192 and noise;193 the adverse impact on
local businesses such as local bait diggers, fishing and oyster industries,194 and
the export of sea salt.195 All these detriments were considered by the Agency to
be either of little or very little consequence. On the other hand, the benefits of
continued operation of the power stations were said to include the contribution to
the limiting of emissions of acid and global warming gases;196 the generation of
economic benefit to BNFL by way of profit from selling electricity – this was said
to be also a potential benefit to taxpayers who would otherwise have to make a
larger contribution towards the unavoidable costs of decommissioning and
legacy waste disposal;197 the cost savings to consumers of electricity;198 the
contribution to the capacity, reliability, diversity and security of electricity
supply;199 the employment directly and indirectly associated with the operation of
the plant and consequent contribution to the local economy of predominantly
rural areas and to the national nuclear industry.200
Far more controversial than the Environment Agency’s list of benefits and
detriments is its attempt to weigh the two, not least because the value of most of
these benefits and detriments in terms of serving human needs and aspirations
defy quantification. In view of the diversity of opinion, public consultation alone
did little to assist the Agency in this regard. While some members of the public
considered the protection of public and the environment the paramount
consideration;201 others were not as impressed as the Agency with the
commercial benefit to BNFL arising from the generation of electricity,202 or the
190
191
192
193
194
195
Ibid., para. P6B. 201
196
197
Ibid., paras. P6B.176 to P6B.180, and P6B.183.
198
199
200
Ibid., paras. P6B.197 and P6B.206.
201
Ibid., para. P6B.147
202
244
contribution of nuclear energy towards a reliable, secure and diverse supply of
energy.203 There were also those who downplayed the significance the
contribution to local employment made by nuclear energy generation; they
pointed out that the renewable energy field could also provide local employment
opportunities.204 Without any attempt to engage participants in competent
practical discourse, it is difficult to see how the Agency could have impartially
weighed the benefits and detriments and arrived at the recommendation it did.205
Of the ethical judgements involved in the authorisation of disposal of radioactive

wastes, the one that falls most squarely within the Environment Agency’s
function, and therefore merits greatest scrutiny in this chapter, is the Agency’s
determination of the ‘optimum’ level of discharge of radioactivity, i.e., that
discharges are ALARA. This is an instance of the balancing of the costs and
benefits, but at a different level; having concluded that a practice is justified
because its benefits outweigh its detriments, the Agency must apply the ALARA
requirement to the question of how the detriments, in particular the health
detriments arising from exposure to radioactivity can be “optimised” to reduce of
exposure to humans and the environment up to the point where the benefits from
further reduction of the detriment would not justify the costs of implementing
further measures to achieve the reduction.
The Agency’s approach in this regard is to require grantees of authorisation to

use the best practicable means206 to limit the amount of radioactive wastes
discharged to the environment.207 Where alternatives exist for the management
of radioactive wastes, the operator will also be required to choose the best
practicable environmental option,208 i.e., that which will have the lowest
environmental impact, taking into account operational doses and risks, and
social and economic factors.209
203
204
Ibid., para. 6B.195.
205
206
Hereinafter “BPM”.
207
208
Hereinafter “BPEO”.
209
Environment Agency, Sellafield Consultation Document, supra, paras. 5.8 and 5.9.
245
In the Sellafield Decision, the Environment Agency sought to ensure that the
BPM was applied to minimise the total radionuclide content of individual waste
streams (i.e., solid, liquid, and aerial),210 and BPEO was chosen for each
principal radionuclide to be disposed. In identifying the BPM/BPEO from
available options, the Agency took into account environmental,211 health and
safety,212 operational,213 and socio-economic criteria.214
The Environment Agency’s decision on whether to require the introduction of

abatement measures for the reduction of aerial tritium provides a good
illustration of its exercise of value judgement in the context of the application of
BPM/BPEO. The possible abatement options215 for the reduction of aerial
discharges of tritium, included the use of metal (e.g., silver) “getters” to react with
the tritium (metal absorption) to form a solid compound;216 and the conversion of
aerial tritium into tritiated water using thermal or catalytic oxidation, followed by
dehumidification by condensation of the vapour into a liquid compound or
absorption with a solid absorber.217
The estimated cost of either abatement technique was at least £100 million, and
was expected to result in a maximum potential saving of 3.2 man Sv in collective
210
Ibid., para. 5.29.
211
Ibid., Appendix 6, para. A6.95. These included the critical group and collective doses, future
risks from solid radioactive waste disposals, the impact of radioactive discharges on ecosystems
and wildlife.
212
Ibid., Appendix 6, para. A6.115. These included radiation doses to workers from Sellafield’s
operations associated with the disposal of radioactive wastes; the risk of accidents arising from
schemes to reduce discharges; and the impact of any discharge reduction measures on the rate
of processing backlog wastes.
213
Ibid., Appendix 6, para. A6.120. These included the technical feasibility and the timescale
needed to implement any scheme to effect reduction of discharges.
214
Ibid., Appendix 6, para. A6.127. These included the financial costs of schemes to reduce
disposals; the economic impact of changes, e.g., job losses or job gains; and whether legitimate
uses of the sea and land will be prejudiced.
215
Strictly speaking, these are not truly abatement options. They merely transfer the tritium from
one medium to another rather than abate the production of wastes.
216
217
246
dose to the world population.218 This saving in collective dose was deemed
grossly disproportionate to the cost because it worked out to a saving rate of £31
million per man Sv saved, and this was more than 1000 times the NRPB
recommended figure of £20,000 per man Sv saved.219 The estimated reduction
in the critical group dose of 0.0032 mSv per year was also considered an
insignificant saving, being less than the threshold for optimisation of 0.02 mSv
per year set by the government as a matter of policy.220
The Agency also noted that the construction, operation and subsequent
decommissioning of the additional facilities necessary to implement either
abatement measure could expose the workforce to an extra radiation dose as
well as involve other radiological and conventional safety risks.
On the other hand, these activities would provide further employment at

Sellafield.221 Either abatement techniques would also lead to the creation of
additional intermediate level solid waste for on-site storage pending a disposal
route and low-level waste for disposal for disposal at Drigg in the course of
operation and their eventual decommissioning.222
Finally, it was estimated that either technique was unlikely to be ready for
implementation before 2010/11, and would be beneficial only for the remaining
lifetime of THORP. It would however not benefit the magnox reprocessing plant,
218
Assuming the ICRP linear no-threshold is correct, this is the equivalent of saving
approximately one-sixth of a life from fatal cancer.
219
Environment Agency, Sellafield Consultation Document, Appendix 6, para. A6.161. This is
another instance of experts making ethical judgements about how much a life ought to be worth.
Since the recommendation was made in 1993, the Agency considered that in 2001 money terms,
the figure should be revised to £25,000 per man Sv saved (para. A6.132). In other words, it was
considered worthwhile to avoid an additional fatal cancer (as well as other health effects) only if it
did not cost more than £500,000 in abatement measures to avoid it.
220
Ibid., Appendix 6, para. A6.163. The threshold is the level of radiation dose below which the
Agency need not press for implementation of further abatement measures provided BPM are
already adopted. It is not clear how this threshold is relevant for the purpose of ascertaining
whether an additional critical dose group saving is worthy of pursuit.
221
Ibid., Appendix 6, para. A6.164. BNFL was unable to provide estimates of the radiation dose
to the workforce associated with these options (para. A6.158).
222
Ibid., Appendix 6, paras. A6.165 and A6.166.
247
the main source of gaseous tritium discharges since its closure date was
projected for around this time (i.e., 2010/11).223
Additionally, if the second abatement technique, i.e., thermal or catalytic

oxidation, were adopted, dehumidification of the tritiated vapour would have to
follow the oxidation process. Installing a dehumidifier was estimated to cost at
least £10 million and be ready only about 5-7 years before the magnox
reprocessing plant ceases operation.224 Its maximum potential collective dose
saving to the world population was estimated at 0.3 man Sv (at a saving rate of
£34.5 million per man Sv saved) and the estimated maximum potential critical
group dose saving was 0.0001 mSv per year.225
In the light of the above analyses, the Agency concluded both abatement options
for reducing aerial tritium were not practicable and that BNFL’s existing practices
(i.e., caustic scrubbing and chilled water dehumidification) remained the
BPEO.226
It may well be that the Agency did arrive at the correct conclusion on the basis of
the information before it; at the very least, it cannot be to be “outrageous in its
defiance of … accepted moral standards”.227 Embedded in these sophisticated
analyses were difficult and highly controversial ethical judgements about the
appropriate balance to be struck, particularly in relation to the expected value of
the savings in collective doses and critical groups doses and the health costs in
terms of additional risks to the Sellafield workforce.
There is no doubt that the ethical judgements involved in the authorisation of

radioactive waste disposal involve difficult normative questions about the value
of certain human needs, and the equity of access to natural resources. These
questions cannot be answered competently using technocratic methods of
analyses alone as the Agency attempted to do. It is true that the Agency
223
Ibid., Appendix 6, paras. A6.167and A6.168
224
225
Ibid., Appendix 6, paras. A6.179 and A6.180.
226
227
Council of Civil Service Unions v. Minister for the Civil Service, supra, p. 951.
248
consulted the interested and affected, but the public is not a homogenous bloc
with identical values, and values are not something that can be statistically
collated by aggregating individual views. While some members of the public
would consider the risks from radiation to be the paramount consideration,228
and that spending public money to reduce discharges of radioactive waste
“would be money well spent”,229 others seemed more concerned that national
energy requirements should be accommodated without detriment to the national
economy,230 questioning the “huge costs” for further reductions in discharges
that they considered to be already at a low level.231 Without trying to forge an
impartial consensus on the appropriate values using competent practical
discourse, the Agency simply is not in a position to reach reliable impartial
ethical judgements on its own about whether radioactive discharges are justified,
ALARA, or BPEO.
Conclusion
In Chapter 7, I referred to McAuslan’s ideologies of planning law232 as an aid to

understanding how the laws concerned with environmental decision-making
generally, and in particular the authorisation of disposal of radioactive wastes,
relate to the provision of fair public participation in environmental decision-
making. The same approach can be profitably adopted to provide insight into
how the legal framework relates to competent public participation in
environmental decision-making, and all the more so since what little support
exists for the public participation ideology in law and practice is concerned more
with its value in promoting legitimacy and fairness than in contributing to good
decisions.233
228
See for example, Environment Agency, Magnox Decision Document, supra, paras. P2.10,
P6A.1 and P6B.147.
229
230
Environment Agency, Magnox Decision Document, supra, para. P6A.2.
231
Environment Agency, Sellafield Scope and Methodology Response Document, supra, paras.
3.10.3, 3.11.1 and 3.13.5.
232
McAuslan, P., Ideologies of Planning Law, supra, p. 2.
233
Steele argues, though, that developments in the law, in particular the environmental impact
assessment Directive and the provisions of the Aarhus Convention, are leading a shift in
orientation away from the legitimacy model towards the problem-solving model of public
249
When it comes to competent environmental decision-making, the orthodox public
administration conception of public interest is evidently the dominating ideology
in the sense that it is judicially accepted to varying degrees that the
administrative or political environmental decision-maker is ultimately endowed
with the statutory authority to determine the facts and make the ethical
judgements in the public interest, and that consequently, as far as the substance
of the decision is concerned, the courts do not consider it their place to intervene
unless the administrative decision-maker’s ethical judgements or determination
of facts are manifestly unreasonable for having exceeded his margin of
appreciation or been Wednesbury irrational. Neither have the courts seen fit to
require that the decision be competently reached by communicative public
participation.
Deference to scientific authority in fact-finding is also high under this ideology.

The Environment Agency is required by ministerial guidance to apply the
principles of sound science. In practice, this means no more than resort to
advice from the international and national scientific establishments. As an
“informed customer” the Agency can, in theory, if it considers such advice
inadequate or unsatisfactory, commission its own studies to supplement such
advice. However, given the limited resources available for this purpose, this
option can only be used sparingly.
Deference to scientific authority degrades the quality of environmental decisions

when the experts chosen are not based on the broad-based discursive
consensus of the affected and interested, and their independence and
impartiality cannot be assured.234 In a similar vein, the value of endorsements
participation (See Steel, J., supra, pp. 418-23). It seems to me, however, that as evidenced by
Lord Hoffman’s recent dicta in Berkeley case, supra, discussed in Chapter 7, the courts’ concern
with public participation is still very much in relation to its legitimising rather than problem-solving
properties.
234
See for example, Environment Agency, Radioactive Substances Act 1993: Proposed Decision
Document on the Application made by Devonport Royal Dockyard to Dispose of Radioactive
Wastes from Devonport Royal Dockyard Plymouth (Bristol: Environment Agency, 2001), paras.
5.15–5.20. The Agency simply addressed concerns raised in the course of public consultation
about the NRPB’s independence and impartiality with the stock response that the NRPB is a
250
from scientific organisations’ reviewing each others’ research findings is
diminished to the extent that these organisations have significantly overlapping
membership, and their members and support technical staff are drawn from the
same scientific establishment, share a common paradigmatic viewpoint, and can
be expected to be less than absolutely critical when reviewing the work of other
organisations that generally support and reinforce their own findings, when in
fact good science would require them to review such work sceptically from a
wide range of alternative perspectives.235 There are clearly some in the scientific
establishment who remain strongly committed to the prevailing radiological
models even in the face of uncertainty and ignorance surrounding the subject
and to seek to defend these models by emphasising selected favourable
evidence while at the same playing down the magnitude or significance of the
models’ shortcomings. As such, it is heartening that having noted significant
differences of view among experts about the impacts of the internal ingestion of
radionuclides, the Environment Minister has called for the establishment of a
new broad-based working group to review the associated risks and the need for
further research.236
Similarly, the Environment Agency’s factual determination that the proposed

discharges of radioactive wastes pose no significant threat to wildlife has largely
public authority with statutory functions concerning the protection of people from radiation
hazards, that NRPB staff participate in the work of the ICRP and contribute to the work of the
ICRP and UNSCEAR, and that neither the NRPB nor the ICRP are influenced by the nuclear
industry.
235
For example, the two UK members of the ICRP’s Main Commission (excluding one UK
emeritus member) are from NRPB. The Commission’s chairman since 1997, Professor R H
Clarke, has been a Director of the NRPB since 1987 and is the UK’s representative to
UNSCEAR. He is also a member of the RWMAC, the international advisory group of IAEA, the
European Commission group of experts responsible for advising on basic safety standards, and
a former Chairman of the OECD Nuclear Energy Agency's Committee on Radiation Protection
and Public Health. COMARE is supported in its work by a Secretariat provided by and based at
the headquarters of the NRPB. The Secretariat provides expertise to the members of COMARE
in the form of comprehensive background information and briefing papers that inform the
decision-making of processes of the Committee.
236
Department for Environment, Food and Rural Affairs, News Release: Michael Meacher
Announces New Review of Radiation Risk Models, 31 July 2001, 77/01, reproduced in
Environment Agency Magnox Decision Document, supra, Vol. 2.
251
been based on an absence of evidence of a significant threat, supplemented by
some evidence suggesting an absence of a threat. In such circumstances, any
conclusion that the proposed discharges would not cause significant
environmental harm is a matter of evidentiary judgement better suited for
competent practical discourse than left to the Agency and its scientific advisors.
In terms of the exercise of evidentiary judgement under the orthodox public

administration ideology, it is true that the Environment Agency is required to
have regard to the precautionary principle. The principle however lacks
sufficient substantive content for an aggrieved individual to mount a successful
legal challenge when the principle is purportedly misapplied; in the absence of
any authoritative definition of the principle, the courts are inclined to defer to the
decision-maker’s application of the principle as interpreted in declared
government policy rather than directly apply the principle themselves or require
that its application be made subject to public participation.
That is not to say that the private interest ideology is completely overwhelmed in
regard to competent environmental decision-making. In regard to fact-finding,
depending on the type of private interest at stake and the extent of interference
with the individual right in question, the courts are prepared to undertake a more
thorough scrutiny of the evidentiary judgements of the environmental decision-
maker, particularly where these are not based on scientific authority. The
degree of deference to the administrative decision-maker also depends on
whether the court in question is a domestic court or the European Court of
Human Rights or a domestic court. Thus, when local residents challenged the
Secretary of State’s decision in effect to increase the level of night noise
nuisance from night flights over Heathrow, the English Court of Appeal
dismissed the application for judicial review because it did not find the Secretary
of State’s decision Wednesbury irrational,237 but the European Court of Human
Rights upheld the challenge on the same facts, effectively finding the Secretary’s
fact-finding inadequate.238
237
R. v. Secretary of State for Transport, ex p. Richmond upon Thames London Borough Council
& ors. (No 4) [1996] 4 All ER 903, 923 (CA).
238
Hatton case, supra.
252
While the European and domestic courts may not strike the same balance
between the competing orthodox public administration and private interest
ideologies in respect of fact-finding, they seem in agreement that the inter-
subjective construction of knowledge through theoretical discourse has no place
in the administrative determination of fact.
In the particular context of the authorisation of disposal of radioactive wastes, the

production of radioactive wastes in the course of nuclear weapon production or
energy production involve defence and economic issues respectively whose
merits the courts have generally shied away from reviewing. This is not
necessarily a bad thing in terms of contribution to sustainable development. The
authorisation of radioactive wastes within prescribed limits is generally not
considered a serious interference of any one individual’s health or access to the
environment, and thus not worthy of judicial concern. On the other hand, a
decision to refuse authorisation is more likely to give rise to heightened judicial
scrutiny over the decision since this could arguably be viewed as a serious
interference of an economic right to exploit property. Thus, heightened judicial
scrutiny to protect individual human rights is not necessarily aligned with the
values of sustainable development.
There is no question that the Environment Agency’s conclusions about the

radiological effects on humans and the environment are supported by evidence
of some probative value,239 backed up by scientific authority. As such, the
Agency’s factual determinations probably satisfy the requirements under
common law and the ECHR. This does not say very much however, about the
competence of the factual determinations in the sense of whether they represent
the best knowledge available for the purpose of environmental decision-making.
The limited theoretical discourse on the radiological effects of the proposed

discharges of radioactivity that had taken place shows that the state of
knowledge about the radiological effects of the proposed discharges of
radioactivity is not as certain as the Environment Agency chooses to believe. To
the extent that the Agency has allowed and responded to factual counterclaims
239
Mahon v. Air New Zealand Ltd & ors., supra, p. 210.
253
that challenged its own factual claims held by the Agency and the experts on
which it relied, it has helped to expose with greater clarity the uncertainty and
subjectivity involved in the ‘established science’ of radiological protection, and
pointed the areas needing further research and investigation.
The courts consider ethical judgements in environmental decision-making to be

a matter for political accountability between the democratically elected politicians
and the electorate rather than legal accountability concerning the courts.240
Acknowledging their own incompetence in adjudicating conflicting value
judgements, the courts have taken to concede to environmental decision-makers
a margin of appreciation (in the case of the European Court of Human Rights),
and a ‘zone’ of non-interference within the limits of Wednesbury reasonableness
(in the case of common law). As in fact-finding, the actual degree of scrutiny will
vary with factors such as the nature of the private right or interference interfered
with and the seriousness of the interference, and the policy content and
complexity of the administrative decision taken in the public interest. However,
whether the ethical judgement has been made competently has not attracted
judicial concern.
Once again, in the particular context of authorisation of radioactive wastes, the

courts are likely to defer to the environmental decision-maker’s ethical
judgements. This is all the more so when decision-makers follow the ethical
judgements embedded in sound scientific advice, as to the acceptable dose
limits, or the acceptable trade-off between financial cost and potential critical
dose saving.
The strong influence of the orthodox public administration and private interest
ideology on environmental decision-making means that little emphasis is given to
the quality of public participation as a competent way to improve the quality of
environmental decision-making. Even the Aarhus Convention, the ‘champion’ of
the public participation ideology, does not fare well in terms of enhancing the
competence of public participation aside from strengthening access to
environmental information. Its primary strength in this regard is in facilitating
240
See for example, Laws J. in Emanuela Marchiori v. Environment Agency, supra, para. 38; and
the House of Lords in the Alconbury case, supra, pp. 975, 978, 980, 999-1000, and 1018.
254
theoretical discourse by improving public access to environmental information
through requirements for contracting states to actively collate, update and
disseminate environmental information rather than passively grant access to
whatever environmental information happens to be available. The Convention is
less definitive however, about the competent resolution of conflicting validity
claims, leaving it to contracting states to decide on the most appropriate mode of
participation in particular circumstances, and how the decision is to take account
of the outcome of such participation.
Overall, both law and practice do not facilitate a high degree of competence in
the Environment Agency’s authorisation of radioactive waste disposal is low.
Conflicting theoretical and practical claims are systematically resolved by
reference to the scientific or political establishment. In terms of Arnstein’s
“ladder of participation”, the Agency’s public consultation exercise would not rank
any higher than the rung of mere “tokenism”; while the public is given the
opportunity to be heard and to have a voice, there is no assurance that the
outcome of their concerns and ideas will carry equal weight in the decision as
those favoured by the establishment.241 While the Agency may be commended
for extending its practice beyond current legal requirements for competent public
participation, as the examination of its practice shows, there is clearly more it
can do. At the same time, it needs to be remembered that any attempt to give
more prominence to the public participation ideology faces an uphill task in a
prevailing climate where the orthodox public administrations and private interest
ideologies of the law relating to environmental decision-making dominate.
241
Arnstein, S. R., supra, p. 217.
255
Chapter 9: Towards Fairer and More Competent Public
Participation in Decision-making
I have in this thesis argued that environmental decision-making does not

concern so much man’s relationship with nature as it does man’s relationship
with one another within and between generations. Sustainable development, the
equitable sharing of access to natural resources is more likely to be achieved
when environmental decisions incorporate fair and competent public
participation.
While perfectly fair and competent public participation in environment does not
exist; the value of a model against which the rules of public participation can be
evaluated is that it provides the means for deficiencies in our current rules of
public participation to be systematically identified, and consequently the focal
points for reform.
Some modes of participation are clearly better than others in terms of fairness
and competence. As the RCEP pointed out, the established methods for public
involvement1 are not ideal for articulating values.2 They generally elicit limited
pre-formed views on narrowly pre-defined issues and provide limited
opportunities for participants to exchange information and insights with other
members of the public and form values. Other mechanisms for participation,
such as focus groups, citizen juries, consensus conferences, and deliberative
polls may be more effective for this task.3 These are said to share certain
common characteristics, namely: Participation is organised by independent
groups to eliminate suspicion of bias. Participants are either randomly selected
or demographically representative, although the latter is preferred because it is
more likely to raise the quality of the decision through diversity in values and
knowledge. The groups are given access to a range of authoritative information,
followed by adequate time to forge values through discussion and debate with
1
Namely, public opinion surveys, consultation exercises, public inquiries, and parliamentary
procedures.
2
3
Ibid., paras. 7.30 to 7.32.
256
other participants who bring with them different knowledge and perspectives.4
While these new modes of public participation allow more opportunities for public
deliberation within the group, they are overall less inclusive. There is also the
question of how truly representative a member of a participation group can be of
the multi-faceted people he supposedly represents. In the long term, depriving
the population at large of the moralising or learning effects of regular
participation in public deliberation may also be detrimental to the quality of the
environmental decisions.
I have demonstrated that environmental decision-making in England fall short in

significant aspects. In particular, the current environmental decision-making
paradigm is dominated, in terms of McAuslan’s terminology, by the orthodox
public administration ideology and private interest ideology. As a result,
environmental decision-making is very much a top-down affair, with supposedly
impartial determinations of facts and values left very much in the hands of the
political leadership and assisted by the scientific establishment. This approach
is complemented with judicial protection of private liberal interests against undue
interference from the state in its pursuit of its perception of the public interest. It
should not come as a surprise that the law and practice relating to environmental
decision-making in a liberal representative democracy such as England is
dominated by the ideologies of orthodox public administration and private
interests and not as conducive to fair and competent public participation
opportunities in environmental decision-making in the common interest as one
might hope. The immediate implications of a conclusion that the law and
practice on environmental decision-making do not promote a high degree of fair
and competent public participation in the authorisation of radioactive waste
disposal is that from a procedural standpoint, the contribution of these decisions
to sustainable development is limited.
The Environment Agency exceeded existing legal requirements in a number of

the criteria for fairness, in particular fairness in opportunities for attendance. In
other criteria, while Agency practice has generally complied with legal
requirements, this does not take one very far given that the law itself falls short
4
Ibid., para. 7.33.
257
of ideal fair and competent participation in many respects. To its credit, the
Agency has already also sought some public input on its proposed procedures
for public participation, and endeavoured to make its decision-making more
transparent and open. In a number of areas however, further improvements in
fairness and competence are possibly being hampered by institutional and legal
constraints. For example, the agenda for public participation in the Agency’s
environmental decision-making is necessarily limited by the scope of its statutory
functions. The Agency must also be guided by “sound science”. In practice, in
view of the resources available to it, this requires no more than its deferment to
scientific authority when in fact a competent theoretical discourse is more
compatible with the principles of sound science.5 The Agency is also required to
accept as the value judgements embedded in legislation or underlying
government policy and environmental standards as definitive instead of relying
on competent practical discourse to forge the same.
Fairer and more competent public participation is more likely to evolve if reforms
are introduced to weaken the grip of the orthodox public administration ideology
and private interest ideology on environmental decision-making. The prevailing
perception amongst the political establishment is that public participation, as
opposed to token public consultation, is a hindrance to balanced and informed
environmental decision-making by the democratically elected guardians of the
common good acting on expert advice. It therefore grudgingly yields time and
financial resources to public participation only to the extent it thinks participation
will further its pursuit of what it deems to be the public interest, or will be
adequate to meet the requirements of procedural legality and establish political
legitimacy.6 This perception is rooted in the myth that experts know best and are
able to provide objective advice whereas participants are irrational and only
5
As Popper points out, scientific objectivity is a product of the social or public character of
scientific method rather than of the individual scientist’s impartiality (See Popper, K., R., The
Open Society and its Enemies (Princeton, New Jersey: Princeton University Press, 1950), p.
405).
6
This perception is very much implied in the government’s recent Planning Green Paper
proposals to speed up and improve the predictability of planning decision-making for major
infrastructure projects by limiting the scope and depth of public participation (See Department for
Transport, Local Government and the Regions, New Parliamentary Procedures for Processing
Major Infrastructure Projects (London: DTLR, 2001)).
258
interested in furthering their short-term interests. A changed mindset will be
necessary; environmental decision-makers need to realise that modern
environmental problems are highly complex, and neither they nor their expert
advisors can continue pretend to have a monopoly on impartial value judgement
or knowledge construction. Instead of the traditional expert-controlled
reductionistic and fragmented approach to decision-making, decision-making
now needs to be decentralised yet holistic, and above reflexive.
The courts accept the myth that the political leadership are necessarily the
champions of the public interest, but their preoccupation in administrative law is
that the narrow interests of the individual that have traditionally been the subject
of private law needs are not unduly sacrificed by the state in the name of the
deemed public interest. What needs to happen is that the courts widen their
procedural protection to cover wider collective interests. There is no reason to
assume that an interest shared in common with others is a priori less important
to the individual than one held exclusively by the individual. Both types of
interests ought therefore to be equally worthy of judicial attention and procedural
protection from interference. This widening of coverage needs to be
accompanied with a capacity to move away from the dominant adjudicative
paradigm and to understand that paradigm only as a specific model of
procedural fairness suite for the adjudicative contexts, and see administrative
environmental decision-makers not just as either judges no experts, but
facilitators of fair and competent public participation. Generic principles of
procedural fairness, along the lines of fair and competent participation must be
introduced into the vocabulary of the courts to enable it to customise appropriate
models to suit specific instances of environmental decision-making. While some
may argue that changing the traditional focus of the courts in this way would
amount to a “partial colonisation of the legal by the political process”,7 the legal
process has never been and is unlikely ever to be independent of the political
process to begin with.8 As long, as judicial scrutiny remains focussed on the
fairness and competence of the decision-making process, there does not have to
7
Harlow, C., “Public Law and Popular Justice” (2002) Modern Law Review 65: 1, 2.
8 th
Griffith, J.A.G., The Politics of the Judiciary ((5 edition) (London: Fontana Press, 1997). See
also Chayes, A., “The Role of the Judge in Public Law Litigation” (1976) Harvard Law Review 89:
1281.
259
be any significant increase in judicial interference in the substantive merits of an
environmental decision beyond what is already inevitable because substance
can never totally be separated from process.
The current obstacle to the courts adopting such a paradigmatic shift is its
inability to install and monitor non-adjudicative procedures. As noted by Jabbari,
the law’s “information mechanisms” currently lacks the learning capacity to
enable courts to form intelligent views of the precise characteristics of
administrative decision-making that would render one procedure more
appropriate than another in a given context.9
The Aarhus Convention will introduce important but in my view, inadequate, legal
improvements to provide a boost to fair and competent public participation.
Anticipated improvements include new requirements for the dissemination of
environmental information, and greater publicity for proposed environmental
decisions and opportunities for public participation in these decisions, including a
more open-ended agenda for public participation. Yet, a lot more remains to be
done. There will not be any requirement for public input in determining the
participation procedure and selecting the facilitator/moderator. Public
participation will also not be mandatory for environmental policy-making and
standard setting although this will change if a Commission proposal for a
directive on strategic environmental assessments is adopted.10 Finally and
importantly, although there is a legal obligation in the Aarhus Convention to take
due account of the outcome of public participation in environmental decision-
making, there will not be any requirements for a more decentralised, holistic and
reflexive mode of decision-making. Ultimately, the outcome will still rely on the
judgements of of established political and scientific authority.
9
Jabbari, D., “Critical Theory in Administrative Law” (1994) Oxford Journal of Legal Studies
14:189.
10
Commission of the European Communities, Amended Proposal for a Council Directive on
Assessment of the Effects of Certain Plans and Programmes on the Environment, supra. Strictly
speaking though, the scope of the Directive only extends to certain plans and programmes, and
not to policies.
260
Finally, fair and competent public participation cannot only be confined to
environmental decision-making in the public sphere. A holistic approach
requires that it be extended more broadly to environmental decision-making by
the private sphere,11 as well as decisions that by nature are not conventionally
classified as environmental decisions, but have significant consequences for the
way access to natural resources is shared, now and in the future.12 In other
words, the achievement of sustainable development will not only require deeper
public participation in environmental decision-making, but also public
participation in a broader scope of decision-making.
It is conceivable that the setting up of an environmental court or tribunal could

help in developing new principles of environmental decision-making and
jurisprudence, and go some way towards promoting fairer and more competent
public participation in environmental decision-making. The suggestion to set up
an environmental court or tribunal in the UK was made as early as over a
decade ago.13 Then, McAuslan proposed that appeals against pollution and
environmental control licensing decisions be heard by a separate judicial-type
body presided by a High Court judge and consisting of members with scientific
and non-scientific consist of legally qualified as well as members with scientific
and non-scientific backgrounds.14 In recommending the setting up of such a
court in the context of the land use planning system in England and Wales,
Grant suggested that there are several aspirational features that define the
concept of such a court/tribunal, including the horizontal and vertical integration
of environmental functions into a specialist/exclusive jurisdiction; the power to
determine merits; independence from government; supervisory jurisdiction over
environmental policy-making; expertise in environmental issues; broad rights of
access; non-adversarial procedures; affordable costs; and a capacity for
11
In this regard, Beck has argued that where private decision-making in the private sector affects
society, it should be politicised and brought under decentralised reflexive democratic control.
See Beck, U., supra, Ch. 8.
12
Potentially, virtually every private or public decision bears consequences for the environment.
How a decision is classified can be quite arbitrary; it depends on how one chooses to frame the
issues.
13
McAuslan, P., “The Role of Courts and Other Judicial Type Bodies in Environmental
Management” (1991) Journal of Environmental Law 195.
14
Ibid., p. 203.
261
innovation to deal with the different demands that environmental issues throw
up.15 Clearly, these are features that have the potential to make a significant
contribution to fair and competent public participation environmental decision-
making. The concept of an environmental court has found favour with Lord
Woolf MR. In his 1991 Garner Environmental Law Lecture, he expressed
support for a new multi-disciplinary tribunal with a general responsibility for
overseeing and enforcing the safeguards provided for environmental protection
with wider discretion to determine its own procedure so as to take advantage its
specialist experience of environmental issues effectively.16 More recently, he
has also expressed the view that such a court would allow value judgements by
the government and scientific advice to be publicly scrutinised.17 The
government however remains “not convinced that there is a planning case for
the establishment of an environmental court”, but has not completely closed the
door on the possibility.18 The issue of an environmental court has recently been
revived by the RCEP. It very recently recommended that an Environmental
Tribunal be set up to hear merit appeals under environmental legislation other
than the town and country planning system, with the possibility that such a
tribunal be combined with the Planning Inspectorate to establish a Planning and
Environment Tribunal at a later date.19 The setting up of an environmental court
to meet the special requirements of environmental decision-making is a positive
step, but should only be an interim measure. As the imperative of fair and
competent public participation extends beyond environmental decision-making,
the entire judicial system may have to be overhauled along similar lines.
Reforming the law and practice to achieve fairness and competence of public
participation in decision-making will be a daunting task that will justifiably take
time and more importantly a strong commitment of political, technical and
15
Grant, M., Environmental Court Project: Final Report (London: DETR, 2000), para. 1.4.
16
Woolf, H., “Are the Judiciary Environmentally Myopic?” (1991) Journal of Environmental Law
4(1): 1, 13.
17
Reported in The Independent, 29 May 2001.
18
Office of the Deputy Prime Minster, The Government’s Response to the Environment,
Transport and Regional Affairs Committee Report: The Planning Inspectorate and Public
Inquiries (Cm. 4891) (London: DTLR, 2000), para. (dd). Emphasis mine.
19
Royal Commission on Environmental Pollution, The Twenty-third Report: Environmental
Planning (Cm 5459) (London: HMSO, 2002), paras 5.36 and 5.39.
262
financial resources. The law and practice cannot continue to promote egoistic
participation or to systematically favour economic interests regardless of need,
relative to environmental interests in environmental decision-making; the
economic, environmental and social costs for preserving the status quo will only
escalate as ecological systems head for collapse and the stakes increase. The
longer decision-making remains closed to fair and competent public participation,
the more it entrenches if not worsens intra-generational and intergenerational
injustice in access to natural resources. This poses a serious threat to the
human prospect, but long before the unavailability of natural resources becomes
intolerable for future generations, the globally disenfranchised victims of
unsustainable development of each successive generation, frustrated with a law
and practice unsympathetic to fair and competent public participation in decision-
making, will be taking to the streets and resorting to civil disobedience or direct
action with increasing frequency and ferocity to get their voices heard,20 and
more importantly, their basic needs met.
20
Donson, L. J. L., The Road to Conflict: Case Studies in the Effectiveness of Public Law as a
Mechanism of Participation in Environmentally Sensitive Decision-making (PhD Thesis, King’s
College London, 1997) (Unpublished).
263
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A Critical Analysis of

the Contribution to Sustainable Development of

Joseph Hoe Kiat Chun

A thesis submitted in fulfilment of

University College London

TABLE OF CONTENTS ...................................................................................... 3

TABLE OF CASES ............................................................................................. 8

TABLE OF UNITED KINGDOM STATUTES .................................................... 12

TABLE OF STATUTORY INSTRUMENTS ....................................................... 13

TABLE OF EUROPEAN UNION INSTRUMENTS ............................................ 14

TABLE OF INTERNATIONAL INSTRUMENTS................................................ 15

PART ONE :: UNDERSTANDING THE CONTRIBUTION OF PUBLIC

CHAPTER 1: AN OVERVIEW OF THE THESIS............................................... 17

CHAPTER 2: THE ETHICAL FOUNDATION OF ENVIRONMENTAL

THE NATURE OF ENVIRONMENTAL CONCERN....................................................... 28

CHAPTER 3: SUSTAINABLE DEVELOPMENT AS JUSTICE ........................ 61

THE EMERGENCE OF SUSTAINABLE DEVELOPMENT .............................................. 61

CHAPTER 4: PUBLIC PARTICIPATION’S CONTRIBUTION TO

SUSTAINABLE DEVELOPMENT AND PUBLIC PARTICIPATION .................................... 88

PART TWO :: ASSESSING PUBLIC PARTICIPATION IN THE

CHAPTER 5: SUSTAINABLE DEVELOPMENT AND THE REGULATION OF

TRANSPOSING SUSTAINABLE DEVELOPMENT INTO A NATIONAL STRATEGY............ 114

CHAPTER 6: AN OVERVIEW OF THE CASE STUDIES AND METHOD OF

THE CASE STUDIES ........................................................................................ 139

CHAPTER 7: THE FAIRNESS OF PUBLIC PARTICIPATION IN THE

(A) ATTENDANCE ....................................................................................... 159

CHAPTER 8: THE COMPETENCE OF PUBLIC PARTICIPATION IN THE

(A) THEORETICAL DISCOURSE .................................................................... 207

CHAPTER 9: TOWARDS FAIRER AND MORE COMPETENT PUBLIC

BIBLIOGRAPHY ............................................................................................. 264

OFFICIAL DOCUMENTS AND REPORTS ............................................................... 264

Albert & Le Compte v. Belgium (1983) 5 EHRR 533.

Countryside and Rights of Way Act 2000.

Conservation (Natural Habitats etc.) Regulations 1994, SI 1994/2716.

Consolidated Version of the Treaty Establishing the European Community [1997]

Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds

European Parliament resolution on the problem of nuclear safety fifteen years

Action Plan for the Human Environment (1972) 11 ILM: 1421.

We live in environmentally critical times, and the importance of improving the

In England and Wales, pressing environmental problems include climate change;

Public participation is now generally considered an essential component of

After an overview of the thesis in Chapter 1, I begin my examination of the

Macmillan Press, 1988).

I examine the anthropocentric environmental ethic in Chapter 3. Under an

Intra-generational and intergenerational equity constitute the core of sustainable

In Chapter 4, I consider how and why public participation in environmental

It is true that public participation in environmental decision-making, understood

Public discourse also aids the construction of reliable knowledge. Knowledge

The authorisation of radioactive waste disposal is also an apposite choice for

The knowledge and values relevant to the authorisation of radioactive waste

A discussion of Webler’s model for fair and competent public participation in

I critically consider in Chapter 7, the fairness of relevant provisions of the

I close in Chapter 9 with an overview of my findings, and conclude that prima

In this chapter, I identify the nature of environmental concern. Three different

The Nature of Environmental Concern

How we perceive the environment matters because it affects how environmental

Anthropocentric Environmental Ethics

Early conceptions of nature were narrowly anthropocentric. Early philosophers

The anthropocentric value of nature can be broadly divided into three

An anthropocentric worldview need not imply the inhumane treatment of animals

University of North Carolina Press, 1997), p. 22.

Anthropocentric environmental concerns need not be confined to the needs of

In an anthropocentric worldview, our main environmental concern centres