(Non)-developments in environmental justice in Scotland

Abstract

This comment discusses the implementation of a 2011 manifesto commitment by the Scottish National Party to publish an options paper on the creation of an environmental court in Scotland. It critiques the resulting 2016 ‘Developments in environmental justice in Scotland’ consultation and subsequent 2017 ‘analysis and response’ – which decided against creating an environmental court. In particular, it examines the consultation with regard to the access to environmental justice requirements of the Aarhus Convention. Despite repeated findings by the Aarhus Convention Compliance Committee and the Meeting of the Parties that the Scottish legal system is non-compliant with Articles 9(4) and 9(5), the consultation documents mention Scotland’s ‘ongoing compliance’ and dismiss the Compliance Committee as a non-judicial body. The comment argues that the Scottish Government failed to fulfil its manifesto commitment and gave little recognition to the structural problems in accessing environmental justice in Scotland.

Can Domestic Environmental Courts Implement International Environmental Law? A Framework for Institutional Analysis

“…127 Thirdly, the establishment of environmental courts may still be constrained by their relative novelty and the complexity of importing the institutional form into complex domestic politics. 128 Regardless of cause, this study's finding of national environmental court diversity emphasizes that structural factors must be considered alongside the discretionary actions taken within individual cases or by individual judges.…”